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93d Congress } COMMITTEE PRINT
-1 /jf
COMPILATION OF
SELECTED LABOR LAWS PERTAINING TO
LABOR RELATIONS
PREPARED BY THE
SUBCOMMITTEE ON LABOR
OF THE
COMMITTEE ON LABOR AND
PUBLIC WELFARE
UNITED STATES SENATE
PART III
LAWS PERTAINING TO EMPLOYEE BENEFITS
AND SAFETY AND HEALTH
SEPTEMBER 6, 1974
Printed for the use of the Committee on Labor and Public Welfare
U.S. GOVERNMENT PRINTING OFFICE
75-623 0 WASHINGTON: 1974
_~jS
For sale by the Superintendent of Documents, U.S. Government Printing O~dce
Washington, D.C. 20402 - Price $3.35
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COMMITTEE ON LABOR AND PUBLIC WELFARE
HARRISON A. WILLIAMS, JR., New Jersey, Chairman
JENNINGS RANDOLPH, West Virginia JACOB K. JAVITS, New York
CLAIBORNE PELL, Rhode Island PETER H. DOMINICK, Colorado
EDWARD M. KENNEDY, Massachusetts RICHARD S. SCHWEIKER, Pennsylvania
GAYLORD NELSON, Wisconsin ROBERT TAFT, JR., Ohio
WALTER F. MONDALE, Minnesota J. GLENN BEALL, JR., Maryland
THOMAS F. EAGLETON, Missouri ROBERT T. STAFFORD, Vermont
ALAN CRANSTON, California
HAROLD E. HUGHES, Iowa
WILLIAM D. HATHAWAY, Maine
JOSEPH P. MCMURRAY, Staff Director and Chief Legislative Counsel
MARJORIE M. WHITTAKER, Civief Clerk
Roy H. MILLENSON, Minority Staff Director
JAY B. CUTLER, Minority Counsel
SUBCOMMITTEE ON LABOR
HARRISON A. WILLIAMS, JR., New Jersey, chairman
JENNINGS RANDOLPH, West Virginia JACOB K. JAVITS, New York
CLAIBORNE PELL, Rhode Island RICHARD S. SCHWEIKER, Pennsylvania
GAYLORD NELSON, Wisconsin ROBERT TAFT, Ja., Ohio
THOMAS F. EAGLETON, Missouri ROBERT T. STAFFORD, Vermont
HAROLD E. HUGHES, Iowa
WILLIAM D. HATHAWAY, Maine
DONALD ELISBURG, Counsel
DoN ZIMMERMAN, Minority Labor Counsel
(II)
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FOREWORD
This compilation of selected labor laws is a document that will be
extremely useful to Members of Congress and their. staff in the con-
sideration of pending and future legislation in the labor-management
area. Other interested individuals will also find this an excellent
publication.
It includes in most cases a summary and description which explains
in laymen's language what the particular law. is and how it works.
The series consists of three parts: Labor Relations; Labor Standards
and Equal Employment Opportunity; and Employee Benefits and
Safety and Health.
HARRISON A. WILLIAMS, Jr.,
Chairman.
(IU)
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CONTENTS
PART I
LABOR RELATIONS: Page
Norris-LaGuardia (Anti-injunction) Act 1
Railway Labor Act
Labor Management Relations Act, 1947 (Taft-Hartley) 37
Labor-Management Reporting and Disclosure Act of 1959 (Landrum-
Griffin)
Welfare and Pension Plans Disclosure Act 131
Sherman Antitrust Act 149
Clayton Antitrust Act 151
Executive Order 11491_Labor-management relations in the Federal
service 153
Farm Labor Contractor Registration Act of 1963 167
Anti-Strikebreaker Law (Byrnes Act) 173
Anti-Racketeering Act (Hobbs Act) 175
Anti-Kickback Law and. Copeland Act 179
Postal Reorganization Act of 1970____~ 181
Employee Retirement Income Security Act of 1974 251
PART II
LABOR STANDARDS AND EQUAL EMPLOYMENT OPPORTUNITY
Fair Labor Standards Act of 1938 459
Equal Pay Act of 1963 525
Age Discrimination in Employment Act of 1967 527
Portal-To-Portal Act of 1947 539
Contract Work Hours and Safety Standards Act 547
Wash-Healey Public Contracts Act 557
Davis-Bacon Act 565
Miller Act
Service Contract Act of 1965 581
Civil Rights of 1964 589
Executive Order 11246-Equal Employment Opportunity 641
Executive Order 11247-Providing for the coordination by the At-
torney General of enforcement of title VI of the Civil Rights Act
of 1964 649
Executive Order 11375-Amending Executive Order No. 11246, re-
lating to equal employment opportunity 651
Executive Order 11478-Equal employment opportunity in the Fed-
eral Government 653
Consumer Credit Protection Act (Garnishment) 655
Rail Passenger Service Act of 1970 (Pertinent provisions) 681
Urban Mass Transportation Act (Pertinent provisions) 685
National Foundation on the Arts and Humanities Act (Secs. 5(j)-
(k)) 687
PART III
~EMPLOYEE BENEFITS AND SAFETY AND HEALTH
Occupational Safety and Health Act of 1970 689
Executive Order 11612-Occupational safety and health programs for
Federal employees 765
Longshoremen's and Harbor Workers' Compensation Act 769
Federal Coal Mine Health and Safety Act of 1969 849
Federal Metal and Non-Metallic Mine Safety Act 937
Federal Employees' Compensation Act 967
Military Personnel and Civilian Employees' Claims Act of 1964 1039
Medical Recovery Act 1047
Federal Tort Claims Act 1053
Migrant Health Act 1059
(IV)
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PART III
EMPLOYEE BENEFITS AND SAFETY AND HEALTH
(V)
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OCCUPATIONAL SAFETY AND HEALTH ACT
OF 1970
29 U.S.C. 651-678, 84 Stat. 1590 (1970)
Summary and Description
PtTRPOSE OF THE LAW
The declared Congressional purpose and policy of this Act is "to
assure so far as possible every working man and woman in the Nation..
safe and healthful working conditions and: to preserve our human
resources."
COVERAGE
* The law applies to every employer engaged in a business affecting
comrriérce who has employees. It applies in all 50 States, the District
of Columbia, Puerto Rico, the Virgin Islands, American Samoa,
Guam, the Trust Territory of the Pacific islands, Wake Island, ,the
Outer Continental Shelf Lands, Johnston Island, and the Canal Zone.
Federal, State and local government employees are specifically. ex-
cluded from coverage, but may be covered by equally effective require-
ments.
In addition, the Act specifically provides that its terms shall not
apply to working conditions protected under other Federal occupa-
tional safety and health laws (such as those under the Federal Coal
Mine Health and Safety Act;, and under the Atomic Energy Act of
1954, as amended, including State agreements under that Act).
DtTTIES OF EMPLOYERS AND EMPLOYEES
Each employer underthe Act has the general duty to furnish each
of his employees employment and places `of `employment, free from
recognized. hazards causing, or likely to cause, death or serious physi-
cal harm; and the employer has the specific duty of complying with
safety and health standards promulgated under .the Act. Each em-
ployee has the duty to comply with these safety and health standards,
and all rules, regulations, and orders,issued pursuant to the Act which
are applicable to his own actions and conduct.
ADMINISTRATION.
Administration and enforcement of the Act. are vested primarily in
the' Secretary of Labor and in a new agency, the Occupational Safety
(689)
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and Health Review Commission, a quasi-judicial board of three mem-
bers appointed by the President. Research and related functions are
vested in the Secretary of Health, Education, and Welfare whose
functions will, for the most part, be carried out by the National Insti-
tute for Occupational Safety and Health established within HEW.
The Secretary of Labor is responsible for both promulgating and
enforcing job safety and health standards. Occupational safety and
health inspectiOns are made by inspectors located in offices established
in many communities throughout the country.
OCCUPATIONAL SAFETY AND HEALTH STANDARDS
In general, job Safety and health standards consist of rules for
avoidance of hazards which have been proven by research and experi-
ence to be harmful to personal safety and health. They constitute an
extensive compilation of wisdom which sometimes applies to all em-
ployees. An example of this would be fire protection standards. A
great many standards, however, apply only to workers while engaged
in specific types of work, such as handling compressed gas.
It is the obligation of all employers and employees to familiarize
themselves with those standards which apply to them and to observe
them at all times.
The Secretary of Labor is authorized, until April 28, 1973, to
promulgate as occupational safety and health standards any existing
Federal standards (such as those applying to Federal contractors
under the Walsh-Healey Act) or any national consensus standards
(such as those issued by the National Fire Protection Association),
without complying with the rule-making requirements of the Admin-
istrative Procedure Act.
In addition, the Secretary of Labor may, upon the basis of infor-
mation submitted by the Secretary of Health, Education, and Wel-
fare, advisory committees and others, revise, modify or revoke exist-
ing standards as well as promulgate new ones. The promulgation of
standards under this section of the Act must be done under the pro-
cedures set forth in the section itself, including various time limita-
tions, and also under the procedures of the Administrative Procedure
Act. Any person adversely affected by a standard issued by the Secre-
tary may challenge its validity by petitioning the U.S. Court of Ap-
peals within 60 days after its promulgation. Unless otherwise ordered
by the Court, filing such a petition does not operate as a stay of ,ti~ie
standard.
Also, the Act provides for the establishment of `emergency tem-
porary standards, effective immediately upon publication in the Fed-
*eral Register, where it is found that employees are exposed to grave
danger. The Act also contains provision for standards which may
require:
That nO employee dealing with toxic materials or harmful phys-
ical agents will suffer material impairment of health or func-
tional capacity, even if~such employee has':regular exposure to
the hazard dealt with by such standard for the period of his
working life.
o Development and prescription of labels or other appropriate
forms of warning so that employees are made aware of all haz-
ards to which they are exposed.
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o Prescription of suitable protective equipment.
o Monitoring or measuring employee exposure to hazards as may
be necessary for the protection of employees.
o Prescription of the type and frequency of medical examinations
or other tests for employees exposed to health hazards. At the
request of an employee, the examination, or test results shall be
furnished to his physician.
The Secretary of Labor, after a hearing on an employer applieat~on
therefor, is authorized to grant temporary variances from standards
to give the employer sufficient time to come into compliance if he can
show a need for certain time-extension and has a protective plan of
action. Variances may be granted without time limits if the Secretary
finds that an employer is using safety measures which are as safe as
those required in a standard. Affected employees must be given notice
of each such application and an opportunity for hearing.
COMPLAINTS OF VIOLATIONS
Any employees (or representative thereof) who believe that a viola-
tion of a job safety or health standard exists which threatens physical
harm, or that an imminent danger exists, may request an inspection by
sending a signed written notice to the Department of Labor. Such a
notice shall set forth with reasonable particularity the grounds for the
notice and a copy shall be provided the employer or his agent. The
names of the complainants need not, however, be furnished to the em-
ployer. If the Secretary finds no reasonable grounds for the complaint
and a citation is not issued, he is required to notify the complainants
in writing of his determinations or final disposition of the matter. The
Secretary is also required to set up procedures for informal review in
a case where a citation is not issued.
ENFORCEMENT
In enforcing the standards, Labor Department safety inspectors may
enter without delay, and at any reasonable times, any establishment
covered by the Act to inspect the premises and all pertinent conditions,
structures, machines, apparatus, devices, equipment, and materials
therein, and to question privately any employer, owner, operator,
agent, or employee. The Act permits the employer and a representative
authorized by his employees to accompany the inspector during the
physical inspection of any workplace for the purpose of aiding such
inspection. The Secretary of Labor also has power, in making inspec-
tions and investigations to require the attendance and testimony of
witnesses and the production of evidence under oath. The Secretary
of Health, Education, and Welfare is also authorized to make inspec-
tions and question employers and employees in order to carry out those
functions assigned to HEW under the Act.
`Where an investigation reveals a violation, the employer is issued a
written citation describing the specific nature of the violation. All cita-
tions shall fix a reasonable time for abatement of the violation, and each
citation (or copies thereof) issued by the Department of Labor must
be prominently posted at or near each place where a violation referred
to in the citation occurred. Notices, in lieu of citations, may be issued
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for de minimis violations which have no direct or immediate relation-
ship to safety or health.
No citation may be issued after the expiration of six (6) months
following the occurrence of any violation.
Notification of proposed penalty
Within a reasonable time after issuance of a citation for a job safety
or health violation, the Labor Department shall notify the employer by
certified mail of the penalty, if any, which is proposed to be assessed.
The employer then has 15 working days within which to notify the
Department that he wishes to contest the citation or proposed assess-
ment of penalty. If the employer fails to so notify the Department, the
citation and the assessment shall be final, provided no employee files an
objection to the time allowed for abatement (see below "Time for
Abatement of Hazards"). If the employer notifies the Department
within such time that he does wish to contest, the Secretary of Labor
will so advise the Occupational Safety and Health Review Commis-
sion which shall afford an opportunity for a hearing. The Commission
then will issue orders affirming, modifying or vacating the citation or
proposed penalty, which orders are final 30 days after issuance. Review
of Commission orders may be obtained in the U.S. Court of Appeals.
The Review Commission's rules of procedure shall provide affected
employees (or representatives thereof) an opportunity to participate
as parties to such hearings.
Time for abatement of hazards
A citation issued by the Department shall prescribe a reasonable
time for elimination or abatement of the hazard. This time limit may
also be contested if notification is filed with the Department within 15
days. The time set by the Department for correcting a violation shall
not begin to run until there is a final order of the Review Commission,
ii the review is initiated by the employer in good faith and not solely
for delay or avoidance of penalties.
Employees (or representatives of employees) also have the right to
object to the period of time fixed for the abatement of a violation. If,
within 15 days after a citation is issued, an employee files a notice with
the Department alleging that an unreasonable time was allowed for
abatement, review procedures similar to those specified above apply.
Failure to correct violation$. within allowed time
Where time for correction of a violation is allowed, but the employer
fails to abate within such time, the Secretary of Labor shall notify the
employer by certified mail of such failure and of the `proposed penalty.
Such notice and assessment shall be final unless the employer contests
the same by notice to the Secretary within 15 days.
Upon a showing by an employer of a good faith effort to comply with
the abatement requirements of a citation, but that abatement has not
been completed because of factors beyond his reasonable control, an
opportunity for a hearing will be afforded, after which an order affirm-
ing or modifying the abatement requirement will be issued'.
PENALTIES FOR VIOLATIONS
Willful or repeated violations of the Act's requirements by em-
ployers may incur monetary penalties of up to $10,000 for each viola-
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tion. Citations issued for serious violations incur ma'mdatory mone-
tary penalties of up to $1,000 for each violation, while penalties in the
same amount may be incurred where non-serious violations are cited.
A. serious violation exists where there is a substantial probability that
death or serious physical harm could result. Any employer who fails to
correct a vioiation for which a citation has been issued within the
period prescribed may be penalized up to $1,000 each day the violation
persists.
A willful violation by an employer which results in the death of any
employee is punishable by a fine of up to $10,000 or imprisonment for
up to six months. A second conviction doubles these criminal penalties.
Criminal penalties are also established for making false official state-
ments, and for giving unauthorized advance notice of any inspections
to be conducted.
RECORDKEEPING REQUIREMENTS
Employers are required to keep and make available to the Labor Sec-
retary (and also to the HEW Secretary) records on certain employer
activities. Employers are also required to maintain accurate records
(and period reports) of work-related deaths, injuries and illnesses.
Minor injuries requiring only first aid treatment need not be recorded,
but a record must be made if it involves medical treatment, loss of
consciousness, restriction of work or motion, or transfer to another job.
Employers can also be required to maintain accurate records of em-
ployee exposures to potentially toxic materials or harmful physical
agents which are required to be monitored or measured and to
promptly advise any employee of any excessive exposure and of the
corrective action being undertaken. The Secretary of Labor, in co-
operation with the Secretary of Health, Education, and Welfare, is
authorized to issue r~gulations in this area which shall provide em-
ployees or their representatives with an opportunity to observe such
monitoring or measuring, to have access to the records thereof and
to such records as well indicate their own exposure to toxic materials
or harmful physical agents.
For recordkeeping purposes, the Secretary's regulations may also
require employers to conduct their own periodic inspections.
The Secretary is directed to issue regulations requiring employers to
keep their employees informed of their protections and obligations
through posting of notices or other appropriate means. The informa-
tion which employers may be required to give their employees may
also include the provisions of applicable standards.
STATISTICS
The Secretary of Labor, in consultation with the HEW Secretary, is
required to develop and maintain an effective program of collection,
compilation and analysis of statistics on work injuries and illnesses.
In so doing he may make private grants or contracts and grants to
States or political subdivisions thereof. The Secretary may also re-
quire employers to file such reports of work injuries and illnesses re-
quired to be kept as he shall deem necessary.
Existing agreements between the Department of Labor and a State
for collection of occupational safety and health statistics are preserved
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until replaced by other arrangements under grants or contracts made
under the Act.
GENERAL NOTICE REQUIREMENTS
The Secretary of Labor is required to publish in the Federal
Register a statement of his reasons for any action he takes with respect
to the promulgation of any standard, the issuance of any rule, order
or decision, the granting of any exemption or extension of time, as
well as any action he takes to compromise, mitigate or settle any
penalty assessed under the Act.
IMMINENT DANGER
Any conditions or practices in any place of employment which are
such that a danger exists which could reasonably be expected to cause
death or serious physical harm immediately or before the imminence
of such danger can be eliminated through normal enforcement proce-
dures, may be restrained by-order of a U.S. District Court upon peti-
tion of the Secretary .of Iiabor. If the Secretary arbitrarily or capri-
ciously fails to seek action to abate an imminent danger of such kind,
a rnandamws action to compel him to act may be brought in the U.S.
District Court by any en~ployee who may be injured by reason of such
failure. A Labor Depart~ient safety inspector who concludes that such
imminent-danger conditions or practices exist in any place of employ-
ment is obligated to inform the affected employees and employers of
the danger and that he is recommending to the Secretary of Labor
that relief be sought.
PROTECTION AGAINST HARASSMENT
No person shall discharge or in any manner discriminate against any
employee because he exercises any right under the Act or files a com-
plaint or other proceeding or because he testifies or is about to testify in
any proceeding under the Act. Any employee who believes that he has
been discharged or otherwise discriminated against in violation of this
provision may, within 30 days of such illegal action, file a complaint
with the Secretary of Labor. The Secretary is authorized to investigate
the matter and to bring action in the U.S. District Court for appropri-
ate relief, including rehiring or reinstatement of the employee to his
former job with back pay. The Secretary must notify the complainant
of this action on the complaint within 90 days of its receipt.
STATE PARTICIPATION
The Act encourages the States to assume the `fullest responsibility
for the administration and enforcement of their occupational safety
and health laws by providing grants to the States for the purposes
shown below. A specific disclaimer of Federal pre-emption is included
in order to permit any State agency or court to assert jurisdiction
under State law over any occupational safety or health issue with
respect to which no Federal standard is in effect under this law.
In addition, any State may assume responsibility for -the develop-
ment and enforcement of occupational safety and health standards
relating to any job safety and health. issu~ covered by a standard pi~o-
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mulgated under the Act, if such State submits an approved plan for
so doing to the Secretary of Labor. The Secretary shall approve such a
plan under the following conditions:
1. An agency, or agencies, of the State must be designated or
created to carry out the plan.
2. The State standards (and enforcement thereof) must be at
least as effective as the counterpart Federal standards in provid-
ing safe and healthful employment.
3. There rnust"be effective provisions for rights of entry and in-
spection of workplaces, including a prohibition on advance notice
of inspections.
4. Enforcement capacity must be demonstrated.
5. Adequate funds for administration and enforcement must be
assured.
6. Effective and comprehensive job safety and health programs
for all public employees within the State will be established to
the extent permitted by the particular State's law.
7. The State, and employers within the State, will make such
reports as may be required by the Secretary of Labor.
Following approval of a State plan for the development and en-
forcement of State standards, the Secretary of Labor may continue to
exercise his enforcement authority with respect to comparable Federal
occupational safety and health standards until he determines on the
basis of actual operations that the criteria set forth above are being
applied. Once he makes such determination (but he cannot do so dur-,
ing the first 3 years after the plan's approval), the Federal standards,
and the Secretary's enforcement of them become inapplicable' with
respect to issues covered under the plan.
The Secretary is required to make a continuing evaluation of the
manner in which each State plan is being carried out and to withdraw
his approval whenever there is a failure to comply substantially with
any provision thereof. Such a plan shall cease to be in effect upon re-
ceipt of notice by the State of the Secretary's withdrawal of approval.
The Secretary of Labor is authorized, after consultation with the
Secretary of Health, Education, and Welf are, to make grants to States
for experimental and demonstration projects consistent with the objec-
tives of the Act, for administering and enforcing approved programs,
for assisting them in identifying their needs, or in developing their
plans, in establishing systems for collection of information concerning
the nature and frequency of occupational injuries and diseases, for
developing and administering programs dealing with occupational
`safety and `health statistics, and for improving the expertise of per-
sonnel or the administration and enforcement of State occupational
safety and health laws consistent with the objectives of the Act.
If the Secretary of Labor rejects a State plan for development and
enforcement of State standards, he shall afford the State submitting
the plan due notice and opportunity for hearing before so doing. The
subsequent withdrawal of an approved State plan or the rejection of a
State's plan is subject to review in the U.S. Court of Appeals.
EDtTCATION AND TRAINING PROGRAMS
The Act provides for programs to be conducted by the Secretary of
Labor, in consultation with the Department of Health, Education, and
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Welfare, for the education and training of employers and employees
in the recognition, avoidance, and prevention of unsafe and unhealth-
ful working conditions, and in the effective means for preventing oc-
cupational injuries and illnesses. rfhe Act also n~akes provision for
educational and training programs to provide, an adequate supply of
qualified personnel to carry out the law's purposes and for informa-
tional programs on the importance of and proper use of adequate saf-
ety and health equipment to be conducted primarily by the Depart-
ment of Health, Education, and Welfare, but also to some extent by
the Secretary of Labor.
NATIONAL INSTITUTE ron OCCUPATIONAL SAFETY AND HEALTH
The Act establishes within HEW a National Institute For Occupa-
tional Safety and Health primarily for the purpose of carrying out the
research and educational functions assigned to the HEW Secretary.
In addition to these functions, the Institute is authorized to develop
and establish recommended occupational safety and health standards;
to conduct research and experimental programs for developing criteria
for new and improved job safety and health standards; and to make
recommendations to the Secretaries of Labor and HEW concerning
new and improved standards.
Among the HEW functions which may be carried out by the In-
stitute is the one which calls for prescribing regulations requiring
employers to measure, record, and make reports on the exposure of
employees to potentially toxic substances or harmful physical agents
which might endanger their safety and health. Employers required
to do so may receive full financial or other assistance for the purpose
of defraying any additional expense incurred. Also authorized are
programs for medical examinations and tests as may be necessary to
determine, for the purposes of research, the incidence of occupational
illness and the susceptibility of employees to such illnesses. These ex-
aminations may also be at Government expense. The Secretary of
HEW is required to publish annually a list of all known toxic sub-
stances and the concentrations at which toxicity is known to occur,
and, at the written request of any employer or authorized representa-
tives of employees, to make determinations whether any substance
normally found in the place of employment has potentially toxic
effects. Such determinations shall be submitted to both the employer
and the affected employees as soon as possible. The HEW Secretary
is also required to conduct and publish industry-wide studies on
chronic or low-level exposure to a broad variety of industrial ma-
terials, processes, and stresses on the potential for illness, disease, or
loss of functional capacity in aging adults.
Information obtained by the Department of HEW and of Labor
under the research provisions of the Act is to be disseminated to em-
ployers and employees and organizations thereof.
WORKMEN'S COMPENSATION
The Act does not in any manner affect any workmen's compensation
law or enlarge or diminish or affect in any other manner the common
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697
law or statutory rights, duties, or liabilities of employers and em-
ployees under any law with respect to injuries, diseases, or death of
employees arising out of, or in the course of, employment. Provision
is made in the law, however, for a 15-member National Commission on
State Workmen's Compensation Laws to evaluate State workmen's
compensation laws in order to determine if such laws provide an
adequate, prompt, and equitable system of compensation for the injury
or death arising, out of or in the course of employment.
ASSISTANCE FROM SMALL BUSINESS ADMINISTRATION
The law includes amendments to the Small Business Act which pro-
vides for financial assistance to small firms for alterations in its equip-
ment, facilities, or methods of operation to comply with standards es-
tablished by the Department of Labor or by any State pursuant to the
Act if the Small Business Administration determines that such a firm
is likely to suffer substantial economic injury without such assistance.
OTHER PROVISIONS
Advisory committees
The Act creates a 12-member National Advisory Committee to be
appointed by the Secretary of Labor (including 4 designees of the
Secretary of HEW) to advise, consult, and make recommendations on
matters relating to the administration of the Act, and permits the
establishment of ad hoc advisory committees to assist the Secretary of
Labor in his standard-setting functions.
Nonobstruction requirement
Any information obtained by any agency under the Act shall be
obtained with a minimum burden upon employers, especially those
operating small businesses. Unnecessary duplication of efforts in ob-
taining information shall be reduced to the maximum extent feasible.
Occupational Safety and Health Review Commission
The Act establishes a new independent Federal agency, called the
Occupational Safety and Health Review Commission. This Commis-
sion is a quasi-judicial body whose functions are: (1) to hear and re-
view cases of alleged violations brought before it by the Secretary of
Labor; and, where warranted, (2) to issue corrective orders, and (3)
to assess civil penalties. The Commission is composed of three mem-
bers, appointed by the President (with approval of the Senate) to
serve 6-year staggered terms, and chosen from among persons who are
qualified by reason of training, education, or experience to perform
their duties. One of the members shall be appointed by the President
to serve as Chairman.
Labor Department legal representation
The Solicitor of Labor is authorized to appear for and represent the
Secretary in any civil litigation brought under the Act subject to the
direction and control of the Attorney General.
Trade secrets
Any trade secrets revealed to Labor Department personnel during
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the course of their duties under the Act shall be considered confidential
for the purpose of 18 U.S.C. 1905.6
National defense tolerances
The Secretary of Labor may allow reasonable variations, tolerances,
and exemptions from any and all of the Act's provisions, if he finds
these necessary to avoid serious impairment of the national defense.
Federal protection for Labor Department inspectors
The Act broadens the provisions of Title 18 of the United States
Code, which makes it a Federal criminal offense to assault, kill, or
otherwise interfere with certain law enforcement officials in the course
of their assignments, by extending this protection to all employees of
the Department of Labor assigned to perform investigative, inspection,
or law enforcement functions.
Annual reports
Comprehensive annual reports on the Act must be prepared and
submitted to the President for transmittal to the Congress by both
the Secretary of Labor and the Secretary of Health, Educatio~i, and
Welfare. Reports are also required from the Secretary of Labor on
the grants program, from the Director of the National Institute for
Occupational Safety and Health on the operations of that Institute,
and from the Secretary of Labor on occupational safety and health
programs for Federal employees.
New Assistant Secretary of Labor
The law adds an additional Assistant Secretary in the Department
of Labor, an Assistant Secretary for Occupational Safety and Health,
who heads the new Occupational Safety and Health Administration
within the Department. This Administration, established by Secre-
tary's Order 12-71, effective April 28, 1971, has broad responsibilities
to insure that employees have safe and healthful working conditions.
In addition to administering the Williams-Steiger Occupational
Safety and Health Act of 1970, the Administration also carries out
the Department's safety and health functions under the Walsh-Healey
Public Contracts Act of 1936, as amended; the Service Contract Act
of 1965; the Contract Work Hours and Safety Standards Act; the
Longshoremen's and Harbor Workers' Compensation Act; the Na-
tional Foundation on the Arts and Humanities Act of 1965; Executive
Order No. 11612, signed July 26, 1971 (July 28, 1971, 36 F.R. 13891),
relating to occupational safety and health programs for Federal em-
ployees; and the Vocational Rehabilitation Act.
ADDENDUM
Prior to establishment of the Occupational Safety and Health Ad-
ministration, the Department's safety and health functions had been
performed by the Bureau of Labor Standards. With creation of the
new Administration, that Bureau was dissolved and its programs
divided between two administrations within the Department. Safety
and health functions were assimilated into the new Administration,
~ This section provides that any employee of any department or agency of the Federal
Government who reveals any confidential information coming to him in the course of any
examination or investigation, made or filed with such department or agency, which relates
to trade secrets shall be fined not more than $1,000, or imprisoned for not more than 1 year
or both, and removed from employment.
PAGENO="0017"
699
except those responsibilities related to child labor provisions of the
Fair* Labor Standards Act, which remained within the Employment
Standards Administration. Other programs of the Bureau, relating to
technical assistance and information on subject matters other than
safety, were absorbed into the Employment Standards Administration
through continuance of two divisions.
The Division of Employment Standards and the Division of Work-
men's Compensation help to improve employment standards for all
workers through better legislation, administration, and practices.
Upon request, technical advisory assistance and consultation are fur-
nished to State labor agencies, unions, management, and others in the
development and administration of improved standards. The divisions
serve as a clearinghouse on State law and practice-the Division of
Workmen's Compensation on the subject of workmen's compensation,
and the Division of Employment Standards on such subjects as mini-
mum wage, hours of work and overtime pay, wage garnishment, in-
dustrial relations, child labor, status of agricultural workers, employ-
ment discrimination, regulation of private employment agencies, and
other matters affecting employment conditions. Better understanding
of the need for and purposes of effective standards is promoted
through issuance of publications and the provision of technical infor-
ination services.
Text of Act
(Section Nos. Refer to u.S. Code)
§ 651. Congressional statement of findings and declaration of
purpose and policy.
The Congress finds that personal injuries and illnesses arising out
of work situations impose a substantial burden upon, and are a hin-
drance to, interstate commerce in terms of lost production, wage loss,
medical expenses, and disability compensation payments.
The Congress declares it to be its purpose and policy, through the
exercise of its powers to regulate commerce among the several States
and with foreign nations and to provide for the general welfare, to
assure so far as possible every working man and woman in the Nation
safe and healthful working conditions and to preserve our human
resources-
(1) by encouraging employers and employees in their efforts to
reduce the number of occupational safety and health hazards at
their places of employment, and to stimulate employers and em-
ployees to institute new and to perfect existing programs for pro-
viding safe and healthful working conditions;
(2) by providing that employers and employees have separate
but dependent responsibilities and rights with respect to achiev-
ing safe and healthful working conditions;
(3) by authorizing the Secretary of Labor to set mandatory
occupational safety and health standards applicable to busines~es
affecting interstate commerce, and by creating an Occupational
Safety and Health Review Commission for carrying out adjudi-
catory functions under this chapter;
(4) by building upon advances already made through employer
* and employee initiative for providing safe and healthful working
conditions;
75-623 0 - 74 - pt. 3 - 2
PAGENO="0018"
700
(5) by providing for research in the field of occupational safety
and health, including the psychological factors involved, and by
developing innovative methods, techniques, and approaches for
dealing with occupational safety and health problems;
(6) by exploring ways to discover latent diseases, establishing
casual connections between diseases and work in environmental
conditions, and conducting other research relating to health prob-
lems, in recognition of the fact that occupational health standards
present problems often different from those involved in occupa-
tional safety;
(7) by providing medical criteria which will assure insofar as
practicable that no employee will suffer diminished health, func-
tional capacity, or life expectancy as a result of his work
experience;
(8) by providing for training programs to increase the num-
ber and competence of personnel engaged in the field of occupa-
tional safety and health;
(9) by providing for the development and promulgation of
occupational safety and health standards;
(10) by providing an effective enforcement program which
shall include a prohibition against giving advance notice of any
inspection and sanctions for any individual violating this
prohibition;
(11) by encouraging the States to assume the fullest responsi-
bility for the administration and enforcement of their occupa-
tional safety and health laws by providing grants to the States to
* assist in* identifying* their needs and responsibilities in the area
of occupational safety and health, to develop plans in accordance
with the provisions of this chapter, to improve the administration
and enforcement of State occupational safety and health laws,
and to conduct experimental and demonstration projects in con-
nection therewith;
(12) by providing for appropriate reporting procedures with
respect to occupational safety and' health which procedures will
help achieve the objectives of this chapter and accurately describe
the nature of the occupational safety and health problem;
* (13) by encouraging joint labor-management efforts to reduce
injuries and disease arising out of employment.
(Pub. L. 91-596, § 2, Dec. 29, 1970, 84 Stat. 1590)
§ 652. Definitions.
For the purposes of this chapter-
(1) The term "Secretary" means the S~ecretary of Labor.
(2) The term "Commission" means the Occupational Safety
and Health Review Commission established under this chapter.
(3) The term "commerce" means trade, traffic, commerce, trans-
portation, or communication among the several States, or between
a State and any place outside thereof, or within the District of
* COlumbia, or a possession of the United States (other than the'
Trust Territory of the Pacific Islands), or between points in the
same State but through a point outside thereof.
(4) The term "person" means one or more individuals, partner-
ships, associations, corporations, business trusts, legal representa-
tives, or any organized group of persons.
PAGENO="0019"
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(5) The term "employer" means a person engaged in a business
affecting commerce who has employees, but does not include the
United States or any State or political subdivision of a State.
(6) The term "employee" means an employee of an employer
who is employed in a business of his employer which affects
commerce.
(7) The term "State" includes a State of the United States, the
District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, and the Trust Territory of the Pacific Islands.
(8) The term "occupational safety and health standard" means
a standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or healthful.
employment and places of employment.
(9) The term "national consensus standard" means any occu-
pational safety and health standard or modification thereof which
(1) has been adopted and promulgated by a nationally recognized
standards-producing organization under procedures whereby it
can be determined by the Secretary that persons interested and
affected by the scope or provisions of the standard have reached
substantial agreement on its adoption, (2) was formulated in a
manner which afforded an opportunity for diverse views to be
considered and (3) has been designated as such a standard by the
Secretary, after consultation with other appropriate Federal
agencies.
(10) The term "established Federal standard" means any oper-
ative occupational safety and health standard established by any
agency of the United States and presently in effect, or contained
in any Act of Congress in force on December 29, 1970.
(11) The term "Committee" means the National Advisory
Committee on Occupational Safety and Health established under
this chapter.
(12) The term "Director" means the Director of the National
Institute for Occupational Safety and Health.
(13) The term "Institute" means the National Institute for
Occupational Safety and Health established under this chapter.
(14) The term "Workmen's Compensation Commission" means
the National Commission on State Workmen's Compensation
Laws established under this chapter.
(Pub. L. 91-596, § 3, Dec. 29, 1970, 84 Stat. 1591.)
§ 653. Geographic applicability; judicial enforcement; applicabil-
ity to existing standards; report to Congress on duplication
and coordination of Federal laws; workmen's compensation
law or common law or statutory rights, duties, or liabilities
of employers and employees unaffected.
(a) This chapter shall apply with respect to employment performed
in a workplace in a State, the District of Columbia, the Common-
wealth of Puerto Rico, the Virgin Islands, American Samoafl Guam,
the Trust Territory of the Pacific Islands, Wake Island, Outer Con-
tinental Shelf lands defined in the Outer Continental Shelf Lands
Act, Johnston Island, and the Canal Zone. The Secretary of the In-
terior shall, by regulation, provide for judicial enforcement of this
PAGENO="0020"
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chapter by the courts established for areas in which there are no
United States district courts having jurisdiction.
(b) (1) Nothing in this chapter shall apply to working conditions
of employees with respect to which other Federal agencies, and State
agencies acting under section 2021 of Title 42, exercise statutory au-
thority to prescribe or enfprçe standards or regulations affecting occu-
pational safety or health.
(2) The safety and health standards promulgated under the Act of
June 30, 1936, commonly known as the Walsh-Healey Act, the Service
Contract Act of 1965, Public Law 91-54, Act of August 9, 1969, Pub-
lic Law 85-742, Act of August 23, 1958, and the National Foundation
on Arts and Humanities Act are superseded on the effective date of
corresponding standards, promulgated under this chapter, which are
determined by the Secretary to be more effective. Standards issued
under the laws listed in this paragraph and in effect on or after the
effective date of this chapter shall be deemed to be occupational safety
and health standards issued under this, as well as under such other
Acts.
(3) The Secretary shall, within three years after the effective date
of this chapter, report to the Congress his recommendations for legis-
lation to avoid unnecessary duplication and to achieve coordination
between this chapter and other Federal laws.
(4) Nothing in this chapter shall be construed to supersede or in
any manner affect any workmen's compensation law or to enlarge or
diminish or affect in any other manner the common law or statutory
rights, duties, or liabilities of employers and employees under any law
with respect to injuries, diseases, or death of employees arising out of,
or in the course of, employment. (Pub. L. 91-596, § 4, Dec. 29, 1970,
84 Stat. 1592.)
§ 654. Duties of employers anti employees.
(a) Each employer-
(1) shall furnish to each of his employees employment and
a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical
harm to his employees;
(2) shall comply with occupational safety and health stand-
ards promulgated under this chapter.
(b) Each employee shall comply with `occupational safety and
health standards and all rules, regulations, and orders issued pursuant
to this chapter which are applicable to his own actions and conduct.
(Pub. L. 91-596, § 5, Dec. 29, 1970, 84 Stat. 1593.)
§ 655. Standards.
(a) Promulgation by Secretary of national consensus standards and
established Federal standards; time for promulgation; conflicting
standards.
Without regard to chapter 5 of Title 5 or to the other subsections
of this section, the Secretary shall, as soon as practicable during the
period beginning with the effective date of this chapter and ending
two years after such date, by rule promulgate as an occupational
safety or health standard any national consensus standards and any
established Federal standard, unless he determines that the promulga-
PAGENO="0021"
703
tion of such a standard would not result in improved safety or health
for specifically designated employees. In the event of conflict among
any such standards, the Secretary shall promulgate the standard which
assures the greatest protection of the safety or health of the affected
employees.
(b) Procedure for promulgation, modification, or revocation of
standards.
The Secretary may by rule promulgate, modify, or revoke any oc-
cupational safety or health standard in the following manner:
(1) Whenever the Secretary, upon the basis of information sub-
mitted 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, Educa-
tion, and Welfare, 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 recommenda-
tions of an advisory committee appointed under section 656 of this
title. The Secretary shall provide such an advisory committee with
any proposals of his own or of the Secretary of Health, Education, and
`Welfare, together with all pertinent factual information developed
by the Secretary or the Secretary of Health, Education, and `Welfare,
or otherwise available, including the results of research, demonstra-
tions, and experiments. An advisory committee shall submit to the
Secretary its recommendations regarding the rule to be promulgated
within ninety 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 two hundred and seventy
days.
(2) The Secretary shall publish a proposed rule promul~ating,
modifying, or revoking an occupational safety or health standard in
the Federal Register and shall afford interested persons a period of
thirty days after publication to submit written data or comments.
Where an advisory committee is appointed and the Secretary de-
termines that a rule should be issued, he shall publish the pronosed
rule within sixty days after the submission of the advisory committee's
recommendations or the expiration of the period prescribed by the
Secretary for such submission.
(3) On or before the last day of the period provided for the sub-
mission of written data or comments under paragraph (2), any inter-
ested person may file with the Secretary written objections to the pro-
posed rule, stating the grounds therefore and requesting a public hear-
ing on such objections. Within thirty days after the last day for filing
such objections, the Secretary shall publish in the Federal Register
a notice specifying the occupational safety or health standard to which
objections have been filed and a hearing requested, and specifying a
time and place for such hearing.
(4) Within sixty days after the expiration of the period provided
for the submission of written data or comments under paragraph (2),
or within sixty days after the completion of any hearing held under
paragraph (3), the Secretary shall issue a rule promulgating, modify-
PAGENO="0022"
704
ing, or revoking an occupational safety or health standard or make a
determination that a rule should not be issued. Such a rule may con-
tain a provision delaying its effective date for such period (not in ex-
cess of ninety days) as the Secretary determines may be necessary to
insure that affected employers and employees will be informed of the
existence of the standard and of its terms and that employers affected
are given an opportunity to familiarize themselves and their employees
with the existence of the requirements of the standard.
(5) The Secretary, in promulgating standards dealing with toxic
materials or harmful physical agents under this subsection, shall set
the standard which most adequately assures, to the extent feasible, on
the basis of the best available evidence, that no employee will suffer
material impairment of health or functional capacity even if such em-
ployee has regular exposure to the hazard dealt with by such stand-
ard for the period of his working life. Development of 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 employee, 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. When-
ever practicable. the standard promulgated shall be expressed in terms
of objective criteria aiid of the performance desired.
(6) (A) Any employer may apply to the Secretary for a temporary
order granting a variance from a standard or any provision thereof
promulgated under this section. Such temporary order shall be granted
only if the employer files an application which meets the requirements
of clause (B) and establishes that (i) he is unable to comply with a
standard by its effective date because of unavailability of professional
or technical personnel or of materials and equipment needed to come
into compliance with the standard or because necessary construction
or alteration of facilities cannot be completed by the effective date,
(ii) he is taking all available steps to safeguard his employees against
the hazards covered by the standard, and (iii) he has an eff'~ctive pro-
gram for coming into compliance with the standard as quickly as
practicable. Any temporary order issued under this paragraph shall
prescribe the practices, means, methods, operations, and processes
which the employer must adopt and use while the order is in effect and
state in detail his program for coming into compliance with the stand-
ard. Such a temporary order may be granted only after notice to em-
ployees and an opportunity for a hearing: Provided, That the Secre-
tary may issue one interim order to be effective until a decision is made
on the basis of the hearing. No temporary order may be in effect for
longer than the period needed by the employer to achieve compliance
with the standard or one year, whichever is shorter, except that such an
order may be renewed not more than twice (I) so long as the require-
ments of this paragraph are met and (II) if an application for re-
newal is filed at least 90 days prior to the expiration date of the order.
No interim renewal of an order may remain in effect for longer than
180 days.
(B) An application for a temporary order under this paragraph (6)
shall contain:
(1) a specification of the standard or portion thereof from
which the employer seeks a variance,
PAGENO="0023"
7Q5:
(ii) a representation by the. employer, supported by representa-
tions from qualified persons having firsthand knowledge of the
facts represented, that he is unable to comply with the standard
or portion thereof and a detailed statement of the reasons therefor,
(iii) a statement of the steps he has taken and will take (with
specific dates) to protect employees against the hazard covered
by the standard,
(iv) a statement of when he expects to be able to comply with
the standard and what steps he has taken and what steps he will
take (with dates specified) to come into compliance with the
standard, and
(v) a certification that he has informed his employees of the
application by giving a copy thereof to their authorized represent-
ative, posting a statement giving a summary of the application
and specifying where a copy may be examined at the place or
places where notices to employees are normally posted, and by
other appropriate means.
A description of how employees have been informed shall be contained
in the certification. The information to employees shall also inform
them of their right to petition the Secretary for a hearing.
(C) The Secretary is authorized to grant a variance from any stand-
ard or portion thereof whenever he determines, or the Secretary of
Health, Education, and Weif are certifies, that such variance is neces-
sary to permit an employer to participate in an experiment approved
by him or the Secretary of Health, Education, and Welfare designed
to demonstrate or validate new and improved techniques to safeguard
the health and safety of workers.
(7) Any standard promulgated under this subsection shall pre-
scribe the use of labels or other appropriate forms of warning as~ are
necessary to insure that employees 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 ex-
posure. Where appropriate, such standard shall also prescribe suit-
able protective equipment and control or technological procedures to
be used in connection with such hazards and shall provide for moni-
toring or measuring employee exposure at such locations and intervals,
and in such manner as may be necessary for the protection of em-
ployees. In addition, where appropriate, any such standard shall pre-
scribe the type and frequency of medical examinations or other tests
which shall be made available, by the employer or at his cost, to
employees exposed to such hazards in order to most effectively deter-
mine whether the health of such employees is adversely affected by
such exposure. In the event such medical examinations are in the
nature of research, as determined by the Secretary of Health, Edu-
cation, and Welfare, such examinations may be furnished at the
expense of the Secretary of Health, Education, and Welfare. The
results of such examinations or tests shall be furnished only to the
Secretary or the Secretary of Health, Education, and Welfare, and,
at the request of the employee, to his physician. The Secretary, in
consultation with the Secretary of Health, Education, and Welfare,
may by rule promulgated pursuant to section 553 of Title 5, make
appropriate modifications in the foregoiiig requirements relating to.
the use of labels or other forms of warning, monitoring or measuring,
PAGENO="0024"
70&
and medical examinatipns, as may be warranted by experience, infor-
mation, or medical or technological developments acquired subsequent
to the promulgation of the relevant standard.
(8) Whenever a rule promulgated by the Secretary differs substan-
tially from an existing national consensus standard, the Secretary
shall, at the same time, publish in the Federal Register a statement
of the reasons why the rule as adopted will better effectuate the pur-
poses of this chapter than the national consensus standard.
(c) Emergency temporary standards.
(1) The Secretaryshall provide, without regard to the requirements
of chapter 5 of Title 5, for an emergency temporary standard to take
immediate effec~ upon publication in the Federal Register if he deter-
mines (A) that employees are exposed to grave danger from exposure
to substances or agents determined to be toxic or physically harmful or
from new hazards, and (B) that such emergency standard is necessary
to protect employees from such danger.
(2) Such standard shall be effective until superseded by a standard
promulgated in accordance with the procedures prescribed in para-
graph (3) of this subsection.
(3) Upon publication of such standard in the Federal Register the
Secretary shall commence a proceeding in accordance with subsection
(b) of this section, and the standard as published shall also serve as a
proposed rule for the proceeding. The Secretary shall promulga.te a
standard under this paragraph no later than six months after publica-
tion of the emergency standard as provided in paragraph (2) of this
subsection.
(d) Variances from standards; procedure.
Any affected employer may apply to the Secretary for a rule or order
for a variance from a standard promulgated under this section. Affected
employees shall be given notice of each such application and an oppor-
tunity to participate in a hearing. The Secretary shall issue such rule
or order if he determines on the record, after opportunity for an in-
spection where appropriate and a hearing, that the proponent of the
variance has demonstrated by a preponderance of the evidence that the
conditions, practices, means, methods, operations, or processes used or
proposed to be used by an employer will provide employment and
places of employment to his employees which a.re as safe and healthful
as those which would prevail if he complied with the standard. The
rule or order so issued shall prescribe the conditions the employer must
maintain, and the practices, means, methods, operations, and processes
which he must adopt and utilize to the extent they differ from the
standard in question. Such a rule or order may be modified or revoked
upon application by an employer, employees, or by the Secretary on his
own motion, in the manner prescribed for its issuance under this sub-
section at any time after six months from its issuance.
(e) Statement of reaso'iw for Secretary's determinations; publication
in Federal Register.
Whenever the Secretary promulgates any standard, makes any
rule, order, or decision, grants any exemption or extension of time,
PAGENO="0025"
707
or compromises, mitigates, or settles any penalty assessed under this
chapter, he shall include a statement of the reasons for such action,
which shall be published in the Federal Register.
(f) Judicial review.
Any person who may be adversely affected by a standard issued*
under this st~ction may at any time prior to the sixtieth day after
such standard is promulgated file a petition challenging the validity
of such standard with the United States court of appeals for 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. The determinations of the Secre-
tary shall be conclusive if supported by substantial evidence in the
record considered as a whole.
(g) Priority for establishment of standards.
In determining the priority for establishing standards under this
section, the Secretary shall give due regard to the urgency of the need.
for mandatory safety and health standards for particular industries,
trades, crafts, occupations, businesses, workplaces or work environ~
ments. The Secretary shall also give due regard to the recommenda-
tions of the Secretary of Health, Education, and Welfare regarding
the need for mandatory standards in determining the priority for
establishing such standards. (Pub. L. 91-596, § 6, Dec. 29, 1970, `84
Stat. 1593.)
§ 656. Administration.
(a) National Advisory Committee on Occupational Safety and Health;
establishment; membership; appointment; Chairman; functions;
meetings; compensation; secretarial and clerical personnel.
(1) There is hereby established a National Advisory Committee on
Occupational Safety and Health consisting of twelve members ap-
pointed by the Secretary, four of whom are to be designated by the
Secretary of Health, Education, and Welfare, without regard to the
provisions of Title 5 governing appointments in the competitive serv-
ice, and composed of representatives of management, labor, occupa-
tional safety and occupational health professions, and of the public.
The Secretary shall designate one of the public members as Chairman.
The members shall be selected upon the basis of their experience and
competence in the field of occupational safety and health.
(2) The Committee shall advise, consult with, and make recom-
mendations to the Secretary and the Secretary of Health, Education,
and Welfare on matters relating to the administration of this chapter.
The Committee shall hold no fewer than two meetings during each
calendar year. All meetings of the Committee shall be open to the
public and a transcript shall be kept and made available for public
inspection.
(3) The members of the Committee shall be compensated in accord-
ance with the provisions of section 3109 of Title 5.
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(4) The Secretary shall furnish to the Committee an executive sec-
retary and such secretarial, clerical, and other services as are deemed
necessary to the conduct of its business.
(b) Advisory committees; appointment; duties; membership; coin-
peiwation; reimbursement to member's employer; meetings;
availability of records; conflict of interest.
An advisory committee may be appointed by the Secretary to assist
him in hi~ standard-setting functions under section 655 of this title.
Each such committee shall consist of not more than fifteen members
and shall include as a member one or more designees of the Secretary
of Health, Education, and Welfare, and shall include among its mem-
bers an equal number of persons qualified by experience and affiliation
to present the viewpoint of the employers involved, and of persons
similarly qualified to present the viewpoint of the workers involved, as
well as one or more representatives of health and safety agencies of
the States. An advisory committee may also include such other per-
sons as the Secretary may appoint who are qualified by knowledge and
experience to make a useful contribution to the work of such commit-
tee, including one or more representatives of professional organiza-
tions of technicians or professionals specializing in occupational safety
or health, and one or more representatives of nationally recognized
standards-producing organizations, but the nnmber of persons so ap-
pointed to any such advisory committee shall not exceed the number
appointed to such committee as representatives of Federal and State
agencies. Persons appointed to advisory committees from private life
shall be compensated in the same manner as consultants or experts
under section 3109 of Title 5. The Secretary shall pay to any State
which is the employer of a member of such a committee who is a repre-
sentative of the health or safety agency of that State, reimbursement
sufficient to cover the actual cost to the State resulting from such
representative's membership on such committee. Any meeting of such
committee shall be open to the public and an accurate record shall be
kept and made available to the pttblic. No member of such committee
(other thah representatives of employers and employees) shall have
a~i economic interest in any proposed rule.
(c) Use of services, facilities, and personnel of Federal, State, and
local agencies; reimbursement; employment of experts and con-
sultants or organieations; renewal of contracts; compensation;
travel expenses.
In carrying out his responsibility under this chapter, the Secretary
is ~tuthorized to-
(I) use, with the consent of any Federal agenCy, the services,
facilities, and personnel of such agency, with or without reim-
bursement, and with the consent of any State or political sub-
division thereof, accept and use the services, facilities, and per-
sonnel of any agency of such State or subdivision with reimburse-
ment; and
(2) employ experts and consultants or organizations thereof
as authorized by section 3109 of Title 5, except that contracts for
such employment may be renewed annually; compensate individ-
PAGENO="0027"
709
uals so employed at rates not in excess of the rate specified at the
time of service for grade GS-18 under section 5332 of Title 5, in-
cluding travel-time, and allow them while away from their homes
or regular places of business, travel expenses (including per diem
in lieu of subsistence) as authorized by secton 5703 of Title 5 for
persons in the Government service employed intermittently while
so employed.
(Pub. L. 91-596, § 7, Dec. 29, 1970, 84 Stat. 1597.)
§ 657. Inspections, investigations, and recordkeeping.
(a) Authority of Secretary to enter, inspect, and investigate places of
employment; time and manner.
In order to carry out the purposes of this chapter, the Secretary,
upon presenting appropriate credentials to the owner, operator, or
agent in charge, is authorized-
(1) to enter without delay and at reasonable times any factory,
plant, establishment, construction site, or other area, workplace
or environment where work is performed by an employee of an
employer; and
(2) to inspect and investigate during regular working hours
and at other reasonable times, and within reasonable limits and
in a reasonable manner, any such place of employment and all
pertinent conditions, structures, machines, apparatus, devices,
equipment, and materials therein, and to question privately any
such employer, owner, operator, agent, or employee.
(b) Attendance and testimony of witnesses and production of evidence;
enforcement of subpoena.
In making his inspections and investigations under this chapter the
Secretary may require the attendance and testimony of witnesses and
the production of evidence under oath. Witnesses shall be paid the
same fees and mileage that are paid witnesses in the courts of the
United States. In case of a contumacy, failure, or refusal of any person
to obey such an order, any district court of the United States or the
United States, court of any territory or possession, within the jurisdic-
tion of which such person is found, resides or transacts business, upon
the application by the Secretary, shall have jurisdiction to issue to such
person an order requiring such person to appear to produce evidence
if, as, and when so ordered, and to give testimony relating to the mat-
ter under investigation or in question, and any failure to obey such
order of the court may be punished by said court as a contempt thereof.
(c) Maintena~nce, preservation, and availability of records; issuance of
regulations; scope of records; periodic inspections by employer;
posting of notices by employer; notification of employee of cor-
rective action.
(1) Each employer shall make, keep and preserve, and make avail-
able to the Secretary or the Secretary of Health, Education, and Wel-
fare, such records regarding his activities relating to this chapter as
the Secretary, in cooperation with the Secretary of Health, Education,
and Welfare, may prescribe by reguhition as necessary or appropriate
for the enforcement of this chapter or for developing information re-
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710
garding the causes and prevention of occupational accidents and ill-
nesses. In order to carry out the provisions of this paragraph such
regulations may include provisions requiring employers to conduct
periodic inspections. The Secretary shall also issue regulations requir-
ing that employers, through posting of notices or other appropriate
means, keep their employees informed of their protections and obliga-
tions under this chapter, including the provisions of applicable
standards.
(2) The. Secretary, in cooperation with the Secretary of Health,
Education, and Welfare, shall prescribe regulations requiring employ-
ers to maintain accurate records of, and to make periodic reports on,
work-related deaths, injuries and illnesses other than minor injuries
requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or trans-
fer to another job.
(3) The Secretary, in cooperation with the Secretary of Health,
Education, and Welfare, shall issue regulations requiring employers to
maintain accurate records Of employee exposures to potentially toxic
materials or harmful physical agents which are required to be moni-
tored or measured under section 655 of this title. Such regulations shall
provide employees or their representatives with an opportunity to ob-
serve such monitoring or measuring, and to have access to the records
thereof. Such regulations shall also make appropriate provision for
each employee or former employee to have access to such records as
will indicate his own exposure to toxic materials or harmful physical
agents. Each employer shall promptly notify any employee who has
been or is being exposed to toxic materials or harmful physical agents
in concentrations or at levels which exceed those prescribed by an ap-
plicable occupational safety and health standard promulgated under
section 655 of this title, and shall inform any employee who is being
thus exposed of the corrective action being taken.
(d) Obtaining of information.
Any information obtained by the Secretary, the Secretary of Health,
Education, and Welfare, or a State agency under this chapter shall be
obtained with a minimum burden upon employers, especially those
operating small businesses. Unnecessary duplication of efforts in ob-
taining information shall be reduced to the maximum extent feasible.
(e) Employer and authorized employee representatives to accompany
Secretary or his authorized representative on inspection of work-
place; consultation with employees where `no authorized employee
representative is present.
Subject to regulations issued by the Secretary, a representative of
the employer and a representative authorized by his employees shall be
given an opportunity to accompany the Secretary or his authorized
* representative during the physical inspection of any workplace under
subsection (a) of this section for the purpose of aiding such inspec-
tion. 1~There there is no authorized employee representative, the Secre-
* tary or his authorized representative shall consult with a reasonable
number of employees concerning matters of health and safety in the
* workplace.
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711
(f) Request for inspection by employees or representative of em-
ployees; grounds; procedure; determination of request; notifi-
cation of Secretary or representative prior to or during any in-
specion of violation; procedure for review of refusal by repre-
sentative of Secretary to issue a citation for alleged violations.
(1) Any employees or representative of employees who believe that
a violation of a safety or health standard exists that threatens physical
harm, or that an imminent danger exists, may request an inspection by
giving notice to the Secretary or his authorized representative of such
violation or danger. Any such notice shall be reduced to writing, shall
set forth with reasonable particularity the grounds for .the notice, and
shall be signed by the employees or representative of employees, and a
copy shall be provided the employer or his agent no later than at the
time of inspection, except that, upon the request of the person giving
such notice, his name and the names of individual employees referred
to therein shall not appear in such copy or on any record published,
released, or made available pursuant to subsection (g) of this section.
If upon receipt of such notification the Secretary determines there are
reasonable grounds to believe that such violation or danger exists, he
shall make a special inspection in accordance with the provisions of
this section as soon as practicable, to determine if such violation~or
danger exists. If the Secretary determines there are no reasonable
grounds to believe that a violation or danger exists he shall notify
the employees or representative of the employees in writing of such
determination.
(2) Prior to or during any inspection of a workplace, any employees
or representative of employees employed in such workplace may notify
the Secretary or any representative of the Secretary responsible for
conducting the inspection, in writing, of any violation of this chapter
which they have reason to believe exists in such workplace. The Secre-
tary shall, by regulations, establish procedures for informal review of
any refusal by a representative of the Secretary to issue a citation with
respect to any such alleged violation and shall furnish the employees or
representative of employees requesting such review a written state-
ment of the reasons for the Secretary's final disposition of the case.
(g) Compilation, analysis, and publication of reports and informa-
tion; rules and regulations.
(1) The Secretary and Secretary of Health, Education, and Wel-
fare are authorized to compile, analyze, and publish, either in sum-
mary or detailed form, all reports or informationobtained under this
section.
(2) The Secretary and the Secretary of Health, Education, and
Welfare shall each prescribe such rules and regulations as he may deem
necessary to carry out their responsibilities under this chapter, includ-
ing rules and regulations dealing with the inspection of an employer's
establishment. (Pub. L. 91-596, § 8, Dec. 29, 1970, 84 Stat. 1598.)
§ 658. Citations.
(a) Authority to issue; grounds; contents; notice in lieu of citation
for de minimis violations.
If, upon inspection or investigation, the Secretary or his authorized
representative believes that an employer has violated a requirement of
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712
section 654 of this title, of any standard, rule or order promulgated
pursuant to section 655 of this title, or of any regulations prescribed
pursuant to this chapter, he shall with reasonable promptness issue a
citation to the employer. Each citation shall be in writing and shall
describe with particularity the nature of the violation, including a ref-
erence to the provision of the chapter, standard, rule, regulation, or
order alleged to have been violated. In addition, the citation shall fix
areasonable time for the abatement of the violation. The Secretary may
prescribe procedures for the issuance of a notice in lieu of a citation
with respect to de minimis violations which have no direct or immedi-
ate relationship to safety or health.
(b) Posting.
Each citation issued under this section, or a copy or copies thereof,
shall be pro~ninent1y posted, as prescribed in regulations issued by the
Secretary, at. or near each place a violation referred to in the `citation
occurred.
(c) Time for issuance.
No citation may be issued under this section after the expiration of
six months following the occurrence of any violation. (Pub. L. 91-596,
§ 9, Dec. 29, 1970, 84 Stat. 1601.)
§ 659. Enforcement procedures.
(a) Notiflca~tion of employer of proposed assessment of penalty sub-
sequent to issuance of citation; time for notification of Secretary
by employer of contest by employer of citation or proposed assess-
mertt; citation and proposed assessment as final order upon failure
of employer to notify of contest and failure of employees to file
`notice.
If, after an inspection or investigation, the Secretary issues a citation
under section 658(a) of this title, he shall, within a reasonable time
after the termination of such inspection or investigation, notify the
employer by certified mail of the penalty, if any, proposed to be
assessed under section 666 of this title and that the employer has fifteen
working days within which to notify the Secretary that he wishes to
contest the citation or proposed assessment of penalty. If, within fif~
teen working days from the receipt of the notice issued by the Secre-
tary the employer fails to notify the Secretary that he intends to `con-
test the citation or proposed assessment of penalty, and no notice is
filed by any employee or representative of employees under subsection
(c) of this section within such time, the citation and the assessment,
as proposed, shall be deemed a final order of the Commission and not
subject to review by any court or agency.
(b) Notification of employer of failure to correct in allotted time
period violation for which citation was issued and proposed assess-
ment of penalty for failure to correct; time for notification of
Secretary by employer of contest by employer of notification of
failure to correct or proposed assessment; notification or pro-
posed assessment as final order upon failure of employer to notify
of contest.
If the Secretary has reason to believe that an employer has failed
to correct a violation for which a citation has been issued within the
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period permitted for its correction (which period shall not begin~tG
run until the entry of a final order by the Commission in the case of
any review proceedings under this section initiated by the employer
in good faith and not solely for delay or avoidance of penalties), the
Secretary shall notify the employer by certified mail of such failure
and of the penalty proposed to be assessed under section 666 of this
title by reason of such failure, and that the employer has fifteen work-
ing days within which to notify the Secretary that he wishes to con-
test the Secretary's notification or the proposed assessment of penalty.
If, within fifteen working days from the receipt of notification issued
by the Secretary, the employer fails to notify the Secretary that he
intends to `contest the notification or proposed assessment of penalty,
the notification and assessment, as proposed, shall be deemed a final
order of the Coi~imission and not subject to review by any court or
agency.
(c) Advisement of Commission by Secretary of notification of contest
by employer of citation or of filing of notice by any employee or
representative of employees; hearing by Commission; orders of
Commission and Secretary; rules of procedure.
If an employer notifies the Secretary that he intends to contest a
citation issued under section 658 (a) of this title or notification issued
under subsection (a) or (b) of this section, or if, within fifteen work-
ing days of the issuance of a citation under section 658 (a) of this
title, any employee or representative of employees files a notice with
the Secretary alleging that the period of time fixed in the citation
for the abatement of the violation is unreasonable, the Secretary shall
immediately advise the Commission of such notification, and the Com-
mission shall afford an opportunity for a hearing (in accordance with
section 554 of Title S but without regard to subsection (a) (3) of such
section). The* Commission shall thereafter issue an order, based on
findings of fact, affirming, modifying, or vacating the Secretary's'
citation or proposed penalty, or directing other appropriate relief,
and such order shall become final thirty days after its issuance. Upon
a showing by an employer of a good faith effort to c?mply with the
abatement requirements of a citation, and that abatement has not been
completed because of factors beyond his reasonable control, the Sec-
retary, after an opportunity for a hearing as provided in this subsec-
tion, shall issue an order affirming or modifying the abatement require-
ments in such citation. The rules of procedure presëribed by the
Commission shall provide affected employees or representatives of
affected employees an opportunity to participate as parties to hearings
under this subsection. (Pub. L. 91-596, § 10, Dec. 29, 1971, 84 Stat.
1601.)
§ `660. Judicial review.
(a) Filing of petition by persons adversely affected or aggrieved;
orders subject to review; jurisdiction; venue; procedure; conclu-
siveness of record and findings of Commission; appropriate re-
lief; finality of judgment.
Any person adversely affected or aggrieved by an order of the Com-
mission issued under subsection (c) of section 659 of this title may
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714
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 where
the employer has its principal office, or in the Court of Appeals for the
District of Columbia Circuit, by filing in such court within sixty days
following the issuance of such order a written petition praying that
the order be modfied 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. Upon such filing, the court shall have jurisdiction of the pro-
ceeding and of the question determined therein, and shall have power
to grant such temporary reli3f or restraining order as it deems just and
proper, and to make and enter upon the pleadings, testimony, and pro-
ceedings 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 modi-
fied. The commencement of proceedings under this subsection shall not,
unless ordered by the court, operate `as a stay of the order of the Com-
mission. 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 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 ma-
terial 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 addi-
tional evidence so taken and filed, and it shall file such modified or new
findings, which findings with respect to questions of fact, if sup-
ported by substantial evidence on the record considered as a whole,
shall be conclusive, and its recommendations, if any, for the modifica-
tion or setting aside of its original order. Upon the filing of the record
with it, the jurisdiction of the court shall be exclusive and its judg-
ment and decree shall be final, except that the same shall he subject
to review by the Supreme Court of the United States, as provided in
:section 1254 of Title 28. Petitions filed under this subsection shall be
heard expeditiously.
(b) Filing of petition by Secretary; orders subject to review; juris-
diction; venue; procedure; conclusiveness of record and findings
of Commission; enforcement of orders; contempt proceedings.
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 which the employer has its principal office,
and the provisions of subsection (a) of this section sh~ill govern such
proceedings to the extent applicable. If no petition for review, as
provided in subsection (a) of this section, is filed within sixty days
after service of the Commission's order, the Commission's findings of
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715
fact and order shall be conclusive in connection with any petition for
enforcement which is filed by the Secretary after the expiration of
such sixty-day period. In any such case, as well as in the case of a non-
contested citation or notification by the Secretary which has become a
final order of the Commission under subsection (a) or (b) of section
659 of this title, the clerk of the court, unless otherwise ordered by the
court, shall forthwith enter a decree enforcing the order and shall
transniit a copy of such decree to the Secretary and the employer
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) of this section, the court of appeals may assess the
penalties provided in section 666 of this section, in addition to invok-
ing any other available remedies.
(c) Discharge or discrimination against employee for exercise of
rights under this chapter; prohibition; procedure for relief.
(1) No person shall discharge or in any manner discriminate
against any employee because such employee has filed any complaint
or instituted or caused to be instituted any proceeding under or re-
lated to this chapter or has testified or* is about to testify in any such
proceeding or because of the exercise by such employee on behalf of
himself or others of any right afforded by this chapter.
(2) Any employee who believes that he has been discharged or other-
wise discriminated against by any person in violation of this subsection
may, within thirty days after such violation occurs, file a complaint
with the Secretary alleging such discrimination. Upon receipt of such
complaint, the Secretary shall cause such investigation to be made
as he deems appropriate. If upon such investigation, the Secretary
determines that the provisions of this subsection have been violated,
he. shall bring an action in any appropriate United States district court
against such person. In any such action the United States district
courts shall have jurisdiction, for cause shown to restrain violations
of paragraph (1) of this subsection and order all appropriate relief
including rehiring or reinstatement of the employee to his former
`position with back pay.
(3.) Within 90 days of the receipt of a complaint filed under this
subsection the Secretary shall notify the complainant of his determina-
tion under paragraph (2) of this subsection. (Pub. L. 91-596, § 11,
Dec. 29, 1970, 84 Stat. 1602.)
§ 661. Occupational Safety and Health Review Commission.
(a) Establishment; membership; appointment; Chairman.
The Occupational Safety and Health Review Commission is hereby
established. The Commission shall be composed of three members who
shall be appointed by the President, by and with the advice and con-
sent to 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 chapter. The President shall designate one of
the members of the Commission to serve as Chairman.
(b) Terms of office; removal by President.
The terms of members of the Commission shall be six~ years except
that (1) the members of the Commission first taking office shall serve,
75-623 0 - 74 - pt. 3 - 3
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Z1i6
as designated by the President at the time of appointment, one for a
term of two years, one for a term of four years, and one for a term
of six years, and (2) a vacancy caused by the death, resignation, or
removal of a member prior to the expiration of the term for which
he was appointed shall be filled only for the remainder of such unex-
pired term. A member of the Commission may be* removed by the
President for inefficiency, neglect of duty, or malfeasance in office.
(c) Principal office; hearings or other proceedings at other places.
The principal office of the Commission . shall be in the District of
Columbia. Whenever the Commission deems that the convenience of
the, public or of the parties may be promoted, or delay or expense
may be minimized, it may holdhearings or conduct other proceedings
at any other place.
(d) Functione and duties of Chairman; appointment and compensa-
tion of hearing examiners and otheremployees.
The Chairman shall be responsible on behalf of the Commission *~r
the administrative operations of the Commission and shall appoint
such hearing examiners and other employees as he deems necessary
to assist in the performance of the Commission's functions and to fix
their compensation in accordaflce with the provisions of chapter 51
and subchapter III of chapter 53 of Title 5 relating to classification
and General Schedule pay rates: Provided, That assignment, removal
and compensation of hearing e~aminers. shall be in accordance with
sections 3105, 3344, 5362, and 7521 of Title `5.
(e) Quorum1; . official action.
For the purpose of carrying ont its functions under this chapter,
tWo members of the Commission shall constitute a quorum andofficial
action can be taken only on the affirmative vote of at least two members.
(f) Hearings and records open to public; promulgation of'rules; ap-
plicability of Federal Rules of Civil Procedure.
Every official act of Ihe Commission shall be entered of record, and
its hearings and records shall be open to the public. The Commission
is authorized to make such rules as are necessary for the orderly trans-
action of its proceedings. Unless the Commission has adopted a dif-
ferent rule, its proceedings shall be in accordance with the Federal
Rules of Civil Procedure.
(g) Depositions and production of documentary evidence; fees.
The Commission may order testimony to be taken by deposition in
any proceeding pending before it at any state of such proceeding.
Any person may be compelled to appear and depose, and to produce
hooks, papers, or documents, in the same manner as witnesses may be
compelled to appear and testify and produce like documentary evi-
dence before the Commission, Witnesses whose depositions are taken
under this subsection, and the persons taking such depositions shall
be entitled to the same fees as are paid for like services in the courts
of the United States.
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717
(It) Investigatory powers.
For the purpose of any proceeding before the Commission, the pro-
visions of section 161 of this title are hereby made applicable to the
jurisdiction and powers of the Commission.
(i) Hearing examiner; determination; report as fina' order o.f Com-
mission.
A hearing examiner appointed by the Commission shall hear, and
make a determination upon, any proceeding institutedbef ore the Com-
mission and any motion in connection therewith, assigned to such
hearing examiner by the Chairman of the Commission, and shall make
a report of any such determination which constitutes his final disposi-
tion of the proceedings. The report of the hearing examiner shall be-
come the final order of the Commission within thirty days after such
report by the hearing examiner, unless within such period any Com~
mission member has directed that such report shall be reviewed by the
Commission.
(j) Appointment and compeneation of hearing examiners.
Except as otherwise provided in this chapter, the hearing examiners
shall be subject to the laws governing employees in the classified civil
service, except that appointments shall be made without regard to
section 5108 of Title 5. Each hearing examiner shall receive compen-
sation at a rate not less than that prescribed for GS-16 under section
5332 of TitleS. (Pub. L. 91-596, § 12 (a), (b), (d)-(k), Dec. 29, 1970,
84 Stat. 1603-1605.)
§ 662. Injunction proceedings.
(a) Petition by Secretary to restrain imminent dangers; scope of
order.
The United States district courts.shall have jurisdiction, upon ~5eti-
tion of the Secretary, to restrain any conditions or practices in any
place of employment which are such that a danger exists which could
reasonably be expected to cause death or serious physical harm im-
mediately or before the imminence of such danger can be eliminated
through the enforcement procedures otherwise provided by this chap-
ter. Any order issued under this section may require such steps to be
taken as may be necessary to avoid, correct, or remove such imminent
*danger and prohibit the employment or presence of any individual
in locations or under conditions where such imminent danger exists,
except individuals whose presence is necessary to avoid, correct, or
remove such imminent danger or to maintain the capacity of a con-
tinuous process operation to resume normal operations without a
complete cessation of operations, or where a cessation of operations
is necessary, to permit such to be accomplished in a safe and orderly
manner.
(b) Appropriate injunctive relief or temporary restrainina order
pending outcome of enforcement proceeding; applicability of
rule 65 of the Federal Rules of Civil Procedure.
Upon the filing of any such petition the district court shall have
jurisdiction to grant such injunctive relief or temporary .restraming
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718
order pending the outcome of an enforcement proceeding pursuant to
this chapter. The proceeding shall be as provided by Rule 65 of the
Federal Rules, Civil Procedure, except that no temporary restraining
order issued without notice shall be effective for a period longer than
five days.
(c) Notification of affected employees and employers by inspector of
danger and of recommendation to Secretary to seek relief.
Whenever and as soon as an inspector concludes that conditions or
practices described in subsection (a) of this section exist in any place
of employment, he shall inform the affected employees and employers
of the danger and that he is recommending tothe Secretary that relief
be sought.
(d) Failure of Secretary to seek relief; writ of mandamus.
If the Secretary arbitrarily or capriciously falls to seek relief under
this section, any employee who may be injured by reason . of such
failure, or the representative of such employees, might bring an action'
against the Secretary in. the United States district court for the dis-
trict in which the imminent danger is alleged' to exist or the em-
ployer has its principal office, or for the District of Columbia, for a
writ of mandamus to compel the Secretary to seek such an order and:
fOr such further relief as may be appropriate. (Pub. L. 91-596, § 13~
Dee. 29, 1970, 84 Stat. 16O~.)
§ 663. Representation in civil litigation.
Except as provided in section 518 (a) of Title 28 relating to litiga-
tion before the Supreme Court, the Solicitor of Labor may appear
for and represent the Secretary in any civil litigation brought under
this chapter but all such litigations shall be subject to the direction and
control of the Attorney General. (Pub. L. 91-596, § 14, Dec. 29, 1970,
84 Stat. 1606.)
§ 664. Disclosure of trade secrets; protective orders.
All information reported' to or otherwise obtained by the Secretary
or. his representative in connection with any inspection or proceeding
under this chapter which contains or which might reveal a trade
secret referred to in section 1905 of Title 18 shall, be considered con-
fidential for the purpose of that section, except that such informa-
tion may be disclosed to other officers or employees concerned with
carrying out this chapter or when relevant in any `proceeding under
this chapter. In any such proceeding the Secretary, the Commis-
sion, or the court shall issue such orders as may be appropriate to
protect the confidentiality of trade secrets. (Pub. L. 91-596, § 15,
Dec. 29, 1970, 84 Stat. 1606.)
§ 665. Variations, tolerances, and exemptions from required pro-
visions; procedure; duration.
The Secretary, on the record, after notice and opportunity for a
hearing may provide such reasonable limitations and may make such
rules and regulations allowing rea~onable variations, tolerances, and
exemptions to and from any or all provisions of this chapter as he
* may find necessary and proper to avoid serious impairment of the
national defense. Such action shall not be in effect for more than six
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719~
months without notification to affected employees and an opportunity
being afforded for a hearing. (Pub. L. 91-596, § 16, Dec. 29, 1970,
84 Stat. 1606.)
§666. Civil and criminal penalties.
(a) Any employer who willfully or repeatedly violates the require-
ments of section 654 of this title, any standard, rule, or order promul-
gated pursuant to section 655 of this title, or regulations prescribed
pursuant to this chapter, may be asseEsed a civil penalty of not more
than $10,000' for each violation.
(b) Any employer who has received a citation for a serious violation
of the requirements of section 654 of this title, of any standard, rule,
or order promulgated pursuant to* section 655 of this title, or of any
regulations prescribed pursuant to this chapter, shall be assessed a
civil penalty of up to $1,000 for each such violation.
(c) Any employer who has received a citation for a violation of the
requirements'of section 654 of this title, of any standard, rule~ or order
promulgated pursuant to section 655 of this title, or of regulations
prescribed pursuant to this chapter, and such violation is specifically
determined not to be of a serious nature, may be assessed a civil
penalty of up to $1,000 for each such violation.
(d) Any employer who fails to correct a violation for which a
citation has been issued under section 658 (a) of this title within the
period permitted for its correction (which period shall not begin to,
run until the date of the final order of the Commission in the case of
any review proceeding under section 659 of this title initiated by the
employer in good faith and not solely for delay or avoidance of pen-
alties), may be assessed a civil penalty of not more than $1,000 for
each day during which such failure or violation continues.
(e) Any employer who willfully violates any standard, rule, or
order promulgated pursuant to section 655 of this title, or of any reg-
ulations prescribed pursuant to this chapter, and that violation caused
death to any employee, shall, upon conviction, be punished by a fine of
not more than $10,000 or by imprisonment for not more than six
months, or by both; except that if the conviction is for a violation com-
mitted after a first conviction of such person, punishment shall be by
a fine of not more than $20,000 or by imprisonment for not more than
one year, or by both.
(f) Any person who gives advance notice of any inspection to be
conducted under this chapter without authority from the Secretary
or his designees, shall, upon conviction, be punished by a fine of not
more than $1,000 or by imprisonment for not more than six months,
or by both.
(g) Whoever knowingly makes any false statement, representation,
Or certification in any application, record, report, plan, or other docu-
ment filed or required to be maintained pursuant to this chapter shall,
upon.conviction, be punished by a. fine of not more than $10,000, or by
imprisonment for not more than six months, or by both.
(h) Any employer who violates any of the posting requirements, as
prescribed under the provisions of this chapter, shall be assessed a
civil penalty of up to $1,000 for each violation.
(i) The Commission shall have authority to assess all civil penalties
provided in this section, giving due consideration to the appropri-
PAGENO="0038"
720
ateness of the penalty with respect to the size of the business of the em-
ployer being charged, the gravity of the violation, the good faith of
the employer, and the history of previous violations.
(j) For purposes of this section, a serious violation shall be deemed
to exist in a place of employment if there is a substantial probability
that death or serious physical harm could result from a condition
which exists, or from one or more practices, means, methods, opera-
tions, or processes which have been adopted or are in use, in such place
of employment unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the violation.
(~k) Civil penalties owed under this chapter 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 is alleged to have occurred
or where the employer has its principal office. (Pub. L. 91-596, § 17
(a)-(g), (i)-(l), Dec. 29, 1970, 84 Stat. 1606, 1607.)
§ 667. State jurisdiction and plans.
(a) Assertion of State standards in absence &f applicable Federal
standards.
Nothing in this chapter shall prevent any State agency or court from
~serthig jurisdiction under State law over any occupational safety
or health issue with respect to which no standard is in effect under sec-
tion ~55 of this title.
(b) Submission of state plan for development and enforcement of
State standards to preempt applicable Federal standards.
Any State which, at any time, desires to assume responsibility for de-
velopment and enforcement therein of occupational safety and health
standards relating to any occupational safety or health issue with re-
spect to which a Federal standard has been promulgated under sec-
tion 655 of this title shall submit a State plan for the development of
such standards and their enforcement.
(c) Conditions for approval of plan.
The Secretary shall approve the plan submitted by a State under
subsection (b) of this section, or any modification thereof, if such plan
in his judgment-
(1) designates a State agency or agencies as the agency or agen-
cies responsible for administering the plan throughout the State.
(2) provides for the development and enforcement of safety
and health standards relating to one or more safety or health is-
sues, which standards (and the enforcement of which standards)
are or will be at. least as effective in providing safe and healthful
employment and places of employment as the standards promul-
gated under section 655 of this title which relate to the same is-
sues, and which standards, when applicable to products which are
distributed or used in interstate commerce, are required by corn-
pelling local conditions and do not unduly burden interstate com-
merce,
(3) provide for a right of entry and inspection of all work-
places subject to this chapter which is at least as effective as that
provided in section 657 of this title, and includes a prohibition on
advance notice of inspections,
PAGENO="0039"
721
(4)~ contains satisfactory assurances that such agency or agen-
cies have or will have the legal authority and qualified personnel
necessary for the enforcement of such standards.
(5) gives satisfactory assurances that such State will devote
adequate funds to the administration and enforcement of such
standards,
(6) contains satisfactory assurances that such State, will, to the
extent permitted by its law, establish and maintain an effective
and comprehensive occupational safety and health program apph-
cable to all employees of public agencies of the State and its
political subdivisions, which program is as effective as the stand-
ards contained in an approved plan,
(7) requires employers in the State to make reports to the Sec-
retary in the same manner and to the same extent as if the plan
were not in effect, and
(8) provides that the State agency will make such reports to
the Secretary in such form and containing such information, as
the Secretary shall from time to tim.e require.
(d) Rejebtion of plan; notice and opportunity for hearing.
If the Secretary rejects a plan submitted under subsection (b) of
this section, he shall afford the State submitting the plan due notice
and opportunity for a hearing before so doing.
(e) Discretion of Secretary to exercise authority over comparable
standards subsequent to approval of State plans; duration; reten-
tion of jurisdiction by Secretary upon determination of enforce-
ment of plan by State.
After the Secretary approves a State plan submitted under subsec-
tion (b) of this section, he may, but shall not be required to, exercise
his authority under sections 657, 658, 659, 662 and 666 of this title
with respect to comparable standards promulgated under section 655
of this title, for the period specified in the next sentence. The Secretary
may exercise the authority referred to above until he determines, on the
basis of actual operations under the State plan, that the criteria set
forth in subsection (c) of this section are being applied, but he shall
not make such determination for at least three years after the plan's
approval under subsection (c) of this section. TJpon making the deter-
mination referred to in the preceding sentence, the provisions of sec-
tions 654(a) (2), 657 (except for the purpose of carrying out subsection
(f) of this section), 658, 659, 662, and 666 of this title, and standards
promulgated under section 655 of this title, shall not apply with re-
spect to any occupational safety or health issues covered under the
plan, but the Secretary may retain jurisdiction under the above provi-
sions in any proceeding commenced under section 658 or 659 of this
title before the date of determination.
(f) Continuing evaluation by Secretary of State enforcement of ap-
proved plan; withdrawal of approval of plan by Secretary;
grounds; procedure; conditions for retention of jurisdiction by
State.
The Secretary shall, on the basis of reports submitted by the State
agency and his own inspections make a continuing evaluation of the
manner in which each State having a plan approved under this section
PAGENO="0040"
722
is carrying out such plan. Whenever the Secretary finds, after afford-
ing due notice and opportunity for a hearing, that in the administra-
tion of the State plan there is a failure to comply substantially with
any provision of the State plan (or any assurance contained therein),.
he shall notify the State agency of his withdrawal of approval of
such plan and upon receipt of such notice such plan shall cease to
be in effect, but the State may retain jurisdiction in any case com-
menced before the withdrawal of the plan in order to enforce stand-
ards under the plan whenever the issues involved do not relate to the
reasons for the withdrawal of the plan.
(g) Judicial review of the Secretary's withdrawal of appro~'cti or
rejection of plan; jurisdiction; venue; procedure; appropriate
relief; finality of judgment.
The State may obtain a review of a decision of the Secretkry ~vith-
drawing approval of or rejecting its plan by the United States court
of appeals for the circuit in which the State is loc~t~d by filing in such
court within thirty days following receipt of nOtice o~ such decision
a petition to modify or set aside in whole or in part the action of the
Secretary. A copy of such petition shall forthwith be served upon the
Secretary, and thereupon the Secretary shall certify and 1~ile in the
court the record upon which the decision complained of was issued
as provided in section 2112 of Title 28. ttnlèss the court finds that the
Secretary's decision in rejecting a proposed State plan or withdrawing
his hpproval of such a plan is nOt ~upported by substantial evidence
the court shall affirm the Secretary's decision. The judgment of the
Court sh~dl be subject to review by the Supreme Court of the United
States upon certiorari or certification as provided in section 1254 of
Title 28.
(h) Temporary enforôemertt of State stand~ds.
The Secretary may enter into an agreement with a State under which
the State will be permitted to continue to enforCe one or more occupa-
tional health and safety standards in effect in such State until final
actiOn is taken by the Secretary with respect to a plan submitted by a
~tatè under subsection (b) of this section, or two years frOm Decem-
ber 29~ 1970, whichever is earlier. (Pub. L. 91-596, § 18, Dec. 29, 1970,
84 Stat. 1608.)
§ 668. Programs of Federal agencies.
(a) Establishment, development and maintenance by head of each
Federal agency.
It shall be the responsibility of the head of each Federal agency
to establish and maintain an effective and comprehensive occupational
safety and health program which is consistent with the standards
promulgated under section 655 of this title. The head of each agency
~hali (after consultation with representatives of employees thereof) -
(1) provide safe and healthful places and conditions of em-
ployment, consistent with the standards set under section 655 of
this title;
(2) acquire, maintain, and require the use of safety equipment,
personal protective equipment, and devices reasonably necessary
to protect employees;
PAGENO="0041"
72~
(3) keep adequate records of all occupational accidents and
illnesses for proper evaluation and necessary corrective action;
(4) consult with the Secretary with regard to the adequacy
as to form and content of records kept pursuant to subsection
(a) (3) of this section; and
(5) make an annual report to the Secretary with respect to oc-
cupational accidents and injuries and the agency's program under
this section. Such report shall include any report submitted under
section 7902(e) (2) Of Title 5.
(b) Report by Secretary to President; report by President to Congress.
The Secretary shall report to the President a summary of digest
of reports submitted to him under subsection (a) (5) of this section,
together with his evaluations of and recommendations derived from
such reports. The President shall transmit annually to the Senate and
the House of Representatives a report of the activities of Federal
agencies under this section.
(c) AOceM by Secretary to records and reports required of agencies.
The Secretary shall have access to records and reports kept and filed
by Federal agencies pursuant to subsections (a) (3) and (5) of this
section unless those records ~nd reports are specifically required by
Executive order to be kept; secret in the interest of the national defense
or foreign policy, in which case the Secretary shall have access to such
information as will not jeopardize national defense or foreign policy.
(Pub. L. 91-596, § 19 (a), (b), (d), Dec. 29, 1970. 84 Stat. 1609, 1610.)
§ 669. Research and related activities.
(a) Authority of Secretary of Health, Education, and Welfare to coñ-
duct research, experiments, and demonstrations, develop plans,
establish criteria, pronwlgate regulations, authorize programs,
and publish results and industrywide studies; consultations.
(1) The Secretary of Health, Education, and Welfare, after con-
sultation with the Secretary and with other appropriate Federal de-
partments or agencies, shall conduct (directly or by grants or con-
tracts) research, experiments, and demonstrations relating to occupa-
tional safety and health, including studies of psychological factors
involved, and relating to innovative methods, techniques, and ap-
proaches for dealing with occupational safety and health problems.
(2) The Secretary of Health, Education, and `Welfare shall from
time to time consult with the Secretary in order to develop specific
plans for such research, demonstrations, and experiments as are neces-
sary to produce criteria, including criteria identifying toxic sub-
stances, enabling the Secretary to meet his responsibility for the for-
mulation of safety and health standards under this chapter; and the
Secretary of Health, Education, and `Welfare, on the basis of such re-
search, demonstrations, and experiments and any other information
available to him, shall develop and publish at least annually such cri-
teria as will effectuate the purposes of this chapter.
(3) The Secretary of Health, Education, and `Welfare, on the basis
of such research, demonstrations, and experiments, and any other in-
formation available to him, shall develop criteria dealing with toxic
materials and harmful physical agents and substances which will de-
PAGENO="0042"
724
scribe exposure levels that are safe for various periods of employment
including but not limited to the exposure levels at which no employee
will suffer impaired health or functional capacities or diminished life
expectancy as a result of his work experience.
(4) The Secretary of Health, Education, and Welfare shall also
conduct special research, experiments, and demonstrations relating to
occupational safety and health as are necessary to explore new prob-
lems, including those created by new technology in occupational safety
and health, which may require ameliorative action beyond that which
is otherwise provided for in the operating provisions of this chapter.
The Secretary of Health, Education, and Welfare shall also conduct
research into the motivational and behavioral factors relating to the
field of occupational safety and health.
(5) The~Secretary of Health, Education, and Welfare, in order to
comply with his responsibilities under paragraph (2), and in order
to develop needed information regarding potentially toxic substances
or harmful physical agents, may prescribe regulations reqiñring em-
ployers to measure, record, and make reports on the exposure of em-
ployees to substances or physical agents which the Secretary of Health,
Education, and Welf are, reasonably believes may endanger the health
or safety of employees. The Secretary of Health, EducatiOn, and Wet-
fare also is authorized to establish such prograrhs of medical examina-
tions and tests as may be necessary for determining the incidence of
occupational illnesses and the susceptibility of employees to such ill-
nesses. Nothing in this or any other provision of this chapter shall be
d~emèd to authorize or require medical examination, immunization,
Or treatment for those who object thereto on religious grounds. except
where such is necessary for the protection of the health or safety of
others. Upon the request of any employer who is required to measure
and record exposure of employees to substances or physical agents as
provided under this subsection, the Secretary of Health. Education,
and Welf are shill furnish full financial or other assistance to such em-
ployer for the. purpose of defraying any additional expense incurred
by him in carrying out the measuring and recording as provided in this
* su~bsection. . S
(6~ The Secretary of Health, Education. and Welfare shall publish
within six months of December 29, 1970. and thereafter as needed hut
at least annually a list of all known toxic substances by generic family
or other useful grouping, and the concentrations at which such toxicity
is known to occur. He shall determine following a written request by
any employer or authorized representative of employees, specifying
with reasonable particularity the grounds on which the request is
made, whether any substance normally found in the place of employ-
inent has potentially toxic effects in such concentrations as used or
found; and shall submit such determination both to employers and
affeCted employees as soon as possible. If the Secretary of Health,
Education, and Welfare determines that any substance is potentially
toxic at the concentrations in which it is used or found in a place
of employment, and such substance is not covered by an occupational
safety or health standard promulgated under section 655 of this title,
the Secretary of Health, Education, and Welfare shall immediately
submit such determination to the Secretary, together with all pertinent
criteria.
PAGENO="0043"
725
(7) Within two years of December 29, 1970, and annually there-
after the Secretary of Health, Education, and Welfare shall conduct
and publish industrywide studies of the effect of chronic or low-level
exposure to industrial materials, processes, and stresses on the poten-
tial for illness, disease, or loss of functional capacity in aging adults.
(b) Authority of Secretary of Health, Education, and Welfare to
make inspections and question employers and employees.
The Secretary of Health, Education, and Welfare is authorized
to make inspections and question employers and employees as pro-
vided in section 657 of this~ title in order to carry out his functions
and responsibilities under this section.
(c) Contracting authority of Secretary of Labor; cooperation between
Secretary of Labor and Secretary of Health, Education, and
Welfare.
The Secretary is authorized to enter into contracts, agreements, or
other arrangements with appropriate public agencies or private orga-
nizations for the purpose of conducting studies relating to his responsi-
bilities under this chapter. In carrying out his responsibilities under
this subsection, the Secretary shall cooperate with the Secretary of
Health, Education, and Welfare in order to avoid any duplication of
efforts under this section.
(d) Dissemination of information to interested parties.
Information obtained by the Secretary and the Secretary of Health.
Education, and Welfare under this section shall be disseminated by
the Secretary to employers and employees and organizations thereof.
(e) Delegation of functions of Secretary of Health, Education, and
Welfare to Director of the National Institute for Occupational
Safety and Health.
The functions of the Secretary of Health, Education, and Welfare
under this chapter shall, to the extent feasible, be delegated to the
Director of the National Institute for Occupational Safety and Health
established by section 671 of this title. (Pub. L. 91-596, § 20, Dec. 29,
1970, 84 Stat. 1610.)
§ 670. Training and employee education.
(a) Authority of Secretary of Health, Education, and Welfare to
conduct education and informational programs; consultations.
The Secretary of Health, Education, and Welfare, after consulta-
tion with the Secretary and with other appropriate Federal depart-
ments and agencies, shall conduct, directly or by grants or contracts
(1) education programs to provide an adequate supply of qualified
personnel to carry out the purposes .of this chapter, and (2) informa-
tional programs on the importance of and proper use of adequate
safety and health equipment.
(b) Authority of Secretary of Labor to conduct short-term training
of personnel.
The Secretary is also authorized to conduct, directly or by grants
or contracts, short-term training of personnel engaged in work related
to his responsibilities under this chapter.
PAGENO="0044"
72~
(c) Authority of Secretary of Labor to establish and supervise edu-
cation and training programs and consult and advise interested
parties.
The Secretary, in consultation with the Secretary of Health, Educa-
tion, and Welfare, shall (1) provide for the establishment and super-
vision of programs for the education and training of employers and
employees in the recognition, avoidance, and prevention of unsafe or
unhealthful working conditions in employments covered by this chap-
ter, and (2) consult with and advise employers and employees, and
organizations representing emplciyers and employees as to effective
means of preventing occupation~tl injtiries and illnesses. (Pub. L.
91-596, § 21, Dec. 29, 1970, 84 Stat. 1612.)
§ 671. National Institute for Occupational Safety and Health.
(a) Staten-tent of purpose.
It is the purpose of this section to establish n National Institute fbr
Occupational Safety and Health in the Department of Health, Edu-
cation, and Welfare in order tb carry out the policy set forth in sec-
tion 651 of this title and to perform the functions of the Secretary of
Health, Education, and Welfare under sections 669 and 670 of this
title.
(b) Establishn-tent; Director; appOintment; term.
There is hereby established in the Department of Health, Education,
and Welfare a National Institute for Occupational Safety and Health.
The Institute shall be headed by a Director who shall be appointed by
the Secretary of Health, Education, and Welfare, and who shall serve
for a term of six years unless previously removed by the Secretary of
Health, Education, and Welfare.
(c) Development and establishment of standards; performance of
functions of Secretary of Healt1~, Education, and Welfare.
The Institute is authorized to-
(1) develop and establish recommended oecupational safety
and health standards; and
(2) perform all functions of the Secretary of Health, Educa-
`tion, and Welfare under sections 669 and 670 ~f this title.
(d) Authority of Director.
Upon his own initiative, or upon the r~quest of the Secretary or the
Secretary of Health, Education, and Welfare, the Director is author-
.ized (1) to conduct such research and experimental programs as he de-
termines are necessary for the development of criteria for new and
improved occupational safety and health standards, and (2) after
*consideration of the results of such research and experimental pro-
grahis, make recommendations concerning new or improved occupa-
tional safety and health standards. Any occupational safety and health
standard recommended pursuant to this section shall immediately be
forwarded to the Secretary of Labor, and to the Secretary of Health,
Education, and Welfare.
(c) Additional authority of Director.
In addition to any authority vested in the Institute by other pro-
visions of this section, the Director, in carrying out the functions of the
Institute, is authorized to-
PAGENO="0045"
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(1) prescribe such regulations as he deems necessary govern-
ing the manner in which its functions shall be carried out;
(2) receive money and other property donated, bequeathed, or
devised, without condition or restriction other than that it be
used for the purposes of the Institute and to use, sell, or otherwise
dispose of such property for the purpose of carrying out its
functions;
(3) receive (and use, sell, or otherwise dispose of, in accordance
with paragraph (2)), money and other property donated, be-
queathed, or devised to the Institute with a condition or restric-
tion, including a condition that the Institute use other funds of
the Institute for the purposes of the gift; funds of the Institute
for the purposes of the gift;
(4) in accordance with the thvil service laws, appoint and fix
the compensation of such personnel as may be necessary to carry
out the provisions of this section;
(5) obtain the services of experts and consultants in accordance
with the provisions of section 3109 of Title 5;
(6) accept and utilize the services of voluntary and noncom~
pensated personnel and reimburse them for travel expenses, in-
cluding per diem, as authorized by section 5703 of Title 5;
(7) enter into contracts, grants or other, arrangements, or modi-
fications thereof to carry out the provisions of this section, and
such contracts or modifications thereof may be entered into with-
out performance or other bonds, and without regard to section 5
of Title 41, or any other provision of law relating to competitive
bidding;
(8) make advance, progress, and other payments which the
Director deems necessary under this title without regard to the
provisions of section 529 of Title 31; and
(9) make other necessary expenditures.
(f,) Annual reports.
The Director shall submit to the Secretary of Health, Education,
and Welfare, to the President, and to the Congress an annual report
of the operations of the Institute under this chapter, which shall in-
clude a detailed statement of all private and public funds received
and expended by it, and such recommendations as he deems appro-
priate. (Pub. L. 91-596, § 22, Dec. 29, 1970, 84 Stat. 1612.)
§ 672. Grants to States.
(a) Designation of State agency to assist State in identifying State
needs and responsibilities and in developing State plans.
The Secretary is authorized, during the fiscal year ending June 30,
1971, and the two succeeding fiscal years, to make grants to the States
which have designated a State agency under section 667 of this title
to assist them-
(1) in identifying their needs a.nd responsibilities in the area
of occupational safety and health,
(2) in developing State plans under section 667 of this title, or
(3) in developing plans for-
(A) establishing systems for the collection of information
concerning the nature and frequency of occupational injuries
and diseases;
PAGENO="0046"
728
(B) increasing the expertise and enforcement capabilities
of their personnel engaged in occupational safety and health
programs; or
(C) otherwise improving the administration and enforce-
ment of State occupational safety and health laws, including
standards thereunder, consistent with the objectives of this
chapter.
(b) Eceperimental and demonstration projects.
The Secretary is authorized, during the fiscal year ending June 30,
1971, and the two succeeding fiscal years, to make grants to the States
for experimental and demonstration projects consistent with the ob-
jectives set forth in subsection (a) of this section.
(c) Designation by Governor of appropriate State agency for receipt
of grant.
The Governor of the State shall designate the appropriate State
agency for receipt of any grant made by the Secretary under this
section.
(d) Subm,ission of application.
Any State agency designated by the Governor of the State desiring
a grant under this section shall submit an application therefor to the
Secretary.
(e) Approval or rejection of application.
The Secretary shall review the application, and shall, after con-
sultation with the Secretary of Health, Education, and Welfare,
approve or reject such application.
(f) Federal share.
Th~ Federal share for each State grant under subsection (a) or (b)
of this section may not exceed 90 per centum of the total cost of the
application. In the event the Federal share for all States under either
such subsection is not the same, the difference among the States
shall be established on the basis of objective criteria.
(~) Administration and enforcement of programs contained ~in ap-
proved State plans; Federal share.
The Secretary is authorized to make grants to the States to assist
them in administering and enforcing programs for occupational safety
and health contained in State plans approved by the Secretary pursu-
~nt to section 667 of this title. The Federal share for each State grant
under this subsection may not exceed 50 per centum of the total cost
to the State of such a program. This last sentence of subsection (f)
of this section shall be applicable in determining the Federal share
under this subsection.
(h) Report to President and Congress.
Prior to June 30, 1973, the Secretary shall, after consultation with
the Secretary of Health, Education, and Welfare, transmit a report to
the President and to the Congress, describing the experience under the
grant programs authorized by this section and making any recomm&i-
dations he may deem appropriate. (Pub. L. 91-596, § 23, Dec. 29, 1970,
84 Stat. 1613.)
PAGENO="0047"
729
§ 673. Statistics.
(a) Development and maintenance of program of collection, compila-
tion, and analysis; employments subject to coverage; scope.
In order to further the purposes of this chapter the Secretary, in
consultation with the Secretary of Health, Education, and Welfare,
shall develop and maintain an effective program of collection, com-
pilation, and analysis of occupational safety and health statistics.
Such program may cover all employments whether or not subject to
any other provisions of this chapter but shall not cover employments
excluded by section 653 of this title. The Secretary shall compile ac-
curate statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses, whether or not
involving loss of time from work, other than minor injuries requiring
only first aid treatment and which do not involve medical treatment,
loss of consciousness, restriction of work or motion, or transfer to
another job.
(b) Authority of Secretary to promote, encourage, or engage in pro-
grams, make grants, and grant or contract for research and*
investigations.
To carry out his duties under subsection (a) of this section, the
Secretary may-
(1) promote, encourage, or directly engage in programs of
studies, information, and communication concerning occupational
safety and health statistics;
(2) make grants to States or political subdivisions thereof in
order to assist them in developing and administering programs
dealing with occupational safety and health statistics; and
(3) arrange, through grants or contracts, for the conduct of
such research and investigations as give promise of furthering the
objectives of this section.
(c) Federal share for grants.
The Federal share for each grant under subsection (b) of this Sec-
tion may be up to 50 per centum of the State's total cost.
(d) TJtili~ation by Secretary of State or local services, facilities, and
employees; consent; reimbursement.
The Secretary may, with the consent of any State or political sub-
division thereof, accept and use the services, facilities, and employees
of the agencies of such State or political subdivision, with or without
reimbursement, in order to assist him in carrying out his functions
under this section.
(e) Reports by employers.
On the basis of the records made and kept pursuant to section 657(c)
of this title, employers shall file such reports with the Secretary as he
shall prescribe by regulation, as necessary to carry out his functions
under this chapter.
(f) Supersedure of agreements between Department of Labor and
States for collection of statistics.
Agreements between the Department of Labor and States pertain-
ing to the collection of occupational safety and health statistics already
PAGENO="0048"
730
in effect on the effective date of this chapter shall remain in effect
until superseded by grants or contracts made under this chapter. (Pub.
L. 91-596, § 24, Dec. 29, 1970,84 Stat. 1614.)
§ 674. Audit of grant recipient; maintenance of records; contents
of records; access to books, etc.
(a) Each recipient of a grant under this chapter shall keep such
records as the Secretary or the Secretary of Health, Education, and
Welfare shall prescribe, including records which fully disclose the
amount and disposition by such recipient of the proceeds of such grant,
the total cost of the project or undertaking in connection with which'
such grant is made or used, and the amount of that portion of the cost
of the project or undertaking supplied by other sources, and such other
records as will facilitate an effective audit.
(b) The Secretary or the Secretary of Health, Education, and Wel-
fare, and the Comptroller General of the United States, or any of their
duly authorized representatives, shall have access for the purpose of
audit and examination to any books, documents, papers, and records
of the recipient of any grant under this chapter that are pertinent to
any such grant. (Pub. L. 91-596, § 25, Dec. 29, 1970, 84 Stat. 1615.)
§ 675. Annual reports by Secretary of Labor and Secretary of
Health, Education, and Welfare; contents.
Within one hundred and twenty days following the convening of
each regular session of each Congress, the Secretary and the Secretary
of Health, Education, and Welfare shall each prepare and submit to
the President for transmittal tO the Congress a report upon the subject
matter of this chapter, the progress toward achievement of the purpose
of this chapter, the needs and requirements in the field of occupational
safety and health, and any other relevant information. Such reports
shall include information regarding occupational safety and health
standards, and criteria for such standards, developed during the pre-
ceding year; evaluation of standards and criteria previously developed
under this chapter, defining areas of emphasis for new criteria and
standards; an evaluation of the degree of observance of applicable oc-
cupational safety and health standards, and a summary of inspection
and enforcement activity undertaken; analysis. and evaluation of re-
search~ activities ~for which results have been obtained under govern-'
mental and nongovernmental sponsorship; an analysis of major occu-
pational diseases; evaluation of available control and measurement
technology for hazards for which standards or criteria' have been'
developed during the preceding year; description of cooperative efforts'
undertaken between Government agencies and other interested parties
in the implementation of this chapter during the preceding year; a~
progress report on the development of an adequate supply of trained
manpower in the field of occupational safety and health, including
estimates of future needs and the efforts being made by Government
and others to meet. those needs; listing of all toxic substances in `indus-
trial usage'for which labeling requirements, criteria, or standards have
not yet been established; and such recommendations for additional leg-
islation as are deemednecessary to protect the safety and health of the
worker and improve the administration of this chapter. (Pub. L. 91-
596, § 26, Dec. 29, 1970, 84 Stat. 1615.)
PAGENO="0049"
731
§ 676. National Commission on State Workmen's Compensation
Laws.
(a) Congressional declaration of policy; statement of purposes.
(1) The Congress hereby finds and declares that-
(A) the vast majority of American workers, and their families,
are dependent on workmen's compensation for their basic ecOnomic
security in the event such workers suffer disabling injury or death
in the course of their employment; and that the full protection
of American workers from job-related injury or death requires an
adequate, prompt, and equitable system of workmen's compensa-
tion as well as an effective program of occupational health and
safety regulation; and
(B) in recent years serious questions have been raised concern-
ing the fairness and adequacy of present workmen's compensation
laws in the light of the growth of the economy, the changing na-
ture of the labor force, increases in medical knowledge, changes
in `the hazards associated with various types of employment, new
technology creating new risks to health and safety, and increases
in the general level of wages and the cost of living.
(2) The purpose of this section is to authorize an effective study and
objective evaluation of State workmen's compensation laws in order to
determine if such laws provide an adequate, prompt, and equitable
system of compensation for injury or death arising out of or in the
course of employment.
(b) Establishment.
There is hereby established a National Commission on State Work-
men's Compensation Laws.
(c) Composition; membership; appointment; vacancies; Chairman
and Vice Chairman; quorum.
(1) The Workmen's Compensation Commission shall be composed
of fifteen members to be appointed by the President from among mem-
bers of State workmen's compensation boards, representatives of in-
surance carriers, business, labor, members of the medical profession
having experience in industrial medicine or in `workmen's compensa-
tion cases, educators having special expertise in the field of workmen's
compensation, and representatives of the general public. The Secre-
tary, the Secretary of Commerce, and the Secretary of Health, Educa-
tion, and Welfare shall be ex officio members of the Workmen's Com-
pensation Commission.
(2) Any vacancy in the Workmen's Compensation Commission
shall not affect its powers.
* (3) The President shall designate one of the members to serve as
Chairman and one to serve as Vice Chairman of the Workmen's Com-
pensation Commission.
(4) Eight members of the Workmen's Compensation Commission
shall constitute a quorum.
(d) Comprehensive study and evaluation of State workmen's compen-
sation laws; areas of study and evaluation; final report to Presi-
dent and Congress; contents.
(d) (1) The Workmen's Compensation Commission shall undertake
a comprehensive study and evaluation of State workmen's compensa-
75-623 0 - 74 - p6. 3 - 4
PAGENO="0050"
732
tion laws in order to determine if such laws provide an adequate,
prompt, and equitable system of compensation. Such study and evalu-
ation shall include, without being limited to, the following subjects:
(A) the amount and duration of permanent and temporary disabihty
benefits and the criteria for determining the maximum limitation
thereon, (B) the amount and duration of medical benefits and pro-
visions insuring adequate medical care and free choice of physician,
(C) the extent of coverage of workers, including exemptions based
on numberu or type of employment, (D) standards for determining
which injuries or diseases should be deemed compensable, (E) re-
habilitation, (F) coverage under second or subsequent injury funds,
(G) time limits on filing claims, (H) waiting period, (I) compulsory
or elective coverage, (J) administration, (K) legal expenses, (L)
the feasibility and desirability of a uniform system of reporting in-
formation concerning job-related injuries and diseases and the oper-
ation' of workmen's compensation laws, (M) the resolution of conflict
of laws, extraterritoriality and similar problems arising from claims
with multistate aspects, `(N) the extent to which private insurance
carriers are `excluded from supplying workmen's compensation cover-
age and the desirability of such exclusionary practices, to the extent
they are found to exist, (0) the relationship between workmen's com-
pensation~ on the' one hand, and old-age, disability, and survivors
insurance and other types of insurance, public or private, on the
other hand, (P) methods of implementing the recommendations of
the Commission.
(2) The Workmen's Compensation Commission shall transmit to
the President and to the Congress not later than July 31, 1972, a final
report bontaining a detailed statement of the findings and conclusions
of the, Commission, together with such recommendations as it deems
advisable.
(c) Hearings; witnesses; administration of oaths; furnishing of in-
formation by departments, `agencies, and instrumentalities of
Federal ea~ecutive branch.
(1) The Workmen's Compensation Commission or, on the author-
ization of the Workmen's Compensation Commission, any subcom-
mittee or members thereof, may, for the purpose of carrying out the
provisions of this title, hold such hearings, take such testimony, and
`sit and act at such times and places as the Workmen's Compensation
Commission deems advisable. Any member authorized by the Work-
men's Compensation Commission may administer oaths or affirmations
to witnesses appearing before the Workmen's Compensation Commis-
sion or any subcommittee or members thereof.
(2) Each department, agency, and instrumentality of the executive
branch of the Government, including independent agencies, is author-
ized and directed to furnish to the Workmen's Compenation Commis-
sion, upon request made by the Chairman or Vice Chairman, such
information as the Workmen's Compensation Commission deems nec-
essary to carry out its functions under this section.
PAGENO="0051"
733
(f) Appointment and compensation of executive director and addi-
tional staff personnel; temporary and intermittent employment of
ea~perts and consultants.
Subject to such rules and regulations as may be adopted by the
Workmen's Compensation Commission, the Chairman shall have the
power to-
(1)* appoint and fix the compensation of an executive director,
and such additional staff personnel as he deems necessary, without
regard to the provisions of Title 5 governing appointments in the
competitive service, and without regard to the provisions of chap-
ter 51 and subchapter III of chapter 53 of such title relating to
classification and General Schedule pay rates, but at rates not in
excess of the maximum rate for GS-18 of the General Schedule
under section 5332 of such title, and
(2) procure temporary and intermittent services to `the. same
* extent as is authorized by section 3109 of Title 5.
(g) Contracting authority.
The Workmen's Compensation Commission is authorized to enter
into contracts with Federal or State agencies, private firms, institu-
tions, and individuals for .the conduct of research or surveys, the prep-
aration of reports, and other activities necessary to the discharge of its
duties.
(It) Compensation and travel ecepenses of members.
Members of the Workmen's Compensation Commission shall receive
compensation' for each day they are engaged in the performance of
their duties as members of the Workmen's Compensation Commission
at the daily rate prescribed for GS-18 under section 5332 of Title 5
and shall be entitled to reimbursement for travel, subsistence, and other
necessary expenses incurred by them in the performance of their duties
as members of the Workmen's Compensation Commission.
(i) Authorization of appropriatione.
There are hereby authorized to be appropriated such sums as may
be necessary to carry out the provisions of this section.
(j) Termination.
On the ninetieth day after the date of submission of its final report
to' the. President, the Workmen's Compensation Commission shall cease
to exist. (Pub. L. 91-596, § 27, Dec. 29, 1970, 84 Stat. 1616.)
§ 677. Separability of provisions.
If any provision of this chapter, or the application of such provision
to `any person or circumstance, shall be held invalid, the remainder of
this chapter, or the application of such provision to persons or circum-
stances other than those as to which it is held invalid, shall not be af-
fected thereby. (Pub. L. 91-596, § 32, Dec. 29, 1970, 84 Stat. 1619.)
* § 678. Authorization of appropriations.
There are authorized to be appropriated to carry out this chapter for
each fiscal year such sums as the Congress shall deem necessary. (Pub.
L. 91-596, § 33, Dec. 29, 1970, 84 Stat. 1620.)
PAGENO="0052"
734
Public Law 91-596
91st Congress, S. 2193
December 29, 1970
~fl ~(t 84 STAT. 1590
To assure safe and healthful working conditions for working men and women;
by authorizing enforcement of the standards developed under the Act; by
assisting and encouraging the States in their efforts to assure safe and health-
ful working conditions; by providing for research, information, education, and
training in the field of occupational safety and health; and for other purposes.
Be it enacted by the Senate and house of Representatives of the
United States of America in Congress assembled, That this Act may
be~cited as the "Occupational Safety and Health Act of 1970". Occupational
Safety and
CONGRESSIONAL FINDINGS AND PURPOSE Health Act of
1970.
SEC. (2) The Congress finds that personal injuries and illnesses aris-
ing out of work situations impcse a substantial burden upon, and are
a hindrance to, interstate commerce in terms of lost production, wage
loss, medical expenses, and disability compensation payments.
(b) The Congress declares it to be its purpose and policy, through
the exercise of its powers to regulate commerce among the several
States and with foreign nations and to provide for the general welfare,
to assure so far as possible every working man and woman in the
Nation safe and healthful working conditions and to preserve our
human resources-
(1) by encouraging employers and employees in their efforts
to reduce the number of occupational safety and health hazards
at their places of employment, and to stimulate employers and
employees to institute new and to perfect existing programs for
providing safe and healthful working conditions;
(2) by providing that employers and employees have separate
but dependent responsibilities and rights with respect to achiev-
ing safe and healthful working conditions;
(3) by authorizing the Secretary of Labor to set mandatory
occupational safety and health standards applicable to businesses
affecting interstate commerce, aiid by creating an Occupational
Safety and Health Review Commission for carrying out adjudi-
catory functions under the Act;
(4) by building upon advances already made through employer
and employee initiative for providing safe and healthful working
conditions;
(5) by providing for research in the field of occupational
safety and health, including the psychological factors involved,
and by developing innovative methods, techniques, and
approaches for dealing with occupational safety and health
problems;
(6) by exploring ways to discover latent diseases, establishing
causal connections between diseases and work in environmental
conditions, and conducting other research relating to health prob-
lems, in recognition of the fact that occupational health standards
present problems often different from those involved in occupa-
tional safety;
(7) by providing medical criteria which will assure insofar as
practicable that no employee will suffer diminished health, func-
* tional capacity, or life expectancy as a result of his work
experience;
(8) by providing for training programs to increase the num-
ber and competence of personnel engaged in the field of occupa-
tional safety and health;
PAGENO="0053"
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Pub. Law 91-596 - 2 - December 29, 1970
84 STAT. 1591
(9) by providing for the development and promulgation of
occupational safety and health standards;
(10) by providing an effective enforcement program which
shall include a prohibition against giving advance notice of any
inspection and sanctions for any individual violating this pro-
hibition;
(11) by encouraging the. States to assume the fullest responsi-
bility for the administration and enforcement of their ocdupa-
tional safety and health laws by providing grants to the States
to assist in identifying their needs and responsibilities in the area
of occupational safety and health, to develop plans in accordance
with the provisions of this Act, to improve the administration and
enforcement of State occupational safety and health laws, nnd
to conduct experimental and demonstration projects in connec-
tion therewith;
(12) by providing for appropriate reporting procedures with
respect to occupational safety and health which procedures will
help achieve the objectives of this Act and accurately describe
the nature of the occupational safety and health problem;
(13) by encouraging joint labor-management efforts to reduce
injuries and disease arising out of employment.
DEFINITIONS
SEC. 3. For the purposes of this Act-
(1) The term "Secretary" mean the Secretary of Labor.
(2) The term "Commission" means the Occupational Safety
and Health Review Commission established under this Act.
(3) The term "commerce" means trade, traffic, commerce, trans-
portation, or communication among the several States, or between
a State and any place outside thereof, or within the District of
Columbia, or a possession of the United States (other than the.
Trust Territory of the Pacific Islands), or between points in the
same State but through a point outside thereof.
(4) The term "person" means one or more individuals, partner-
ships, associations, corporations, business trusts, legal representa-
tives, or any organized group of persons.
(5) The term "employer" means a person engaged in a
business affecting commerce who has employees, but does not
include the United States or any State or political subdivision
of a State.
(6) The term "employee" means an employee of an employer
who is employed in a business of his employer which affects
commerce.
(7) The term "State" includes a State of the United States, the
District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, and the Trust Territory of the Pacific Islands.
(8) The term "occupational safety and health standard"
means a standard which requires conditions, or the adoption or
use of one or more practices, means, methods, operations, or proc-
esses, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment.
(9) The term "national consensus standard" means any occupa-
tional safety and health standard or modification thereof which
(1), has been adopted and promulgated by a nationally recog-
nized standards-producing organization under procedures where-
by it can be determined by the Secretary that persons interested
PAGENO="0054"
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December 29, 1970 - 3 - Pub0 Law 91-596 84 STAT. 1592
and affected by the scope or provisions of the standard have
reached substantial agreement on its adoption, (`2) was formu-
lated in a manner which afforded an opportunity for diverse
views to be considered and (3) has been designated as such a
standard by the Secretary, after consultation with other appro-
priate Federal agencies.
(10) The term "established Federal standard" means any oper-
ative occupational safety and health standard established by any
agency of the United States and presently in effect, or contained
in any Act of Congress in force on the date of enactment of this
Act..
(11) The term "Committee" means the National Advisory
Committee on Occupational Safety and Health established under
this Act..
(12) The term "Director" means the Director of the National
Institute for Occiipntional Safety and Health.
(13) The term "Institute" means the National Institute for
Occupational Safety and Health established under this Act.
(14) The term "Workmen's Compensation Commission" means
the National Commission on State Workmen's Compensation
Laws established under this Act.
APPLICABILITY OF THIS ACT
SEC. 4. (a) This Act shall apply with respect to employment per-
formed in a workplace in a State, the District of Columbia, the Com-
monwealth of Puerto Rico, the Virgin Islands, American Samoa,
Guam, the Trust. Territory of the Pacific Islands, Wake Island, Outer
Continental Shelf lands defined in the Outer Continental Shelf Lands
Act, Johnston Island, and the Canal Zone. The Secretary of the Inte- 67 Stat. 462.
nor shall, by regulation, provide for judicial enforcement of this 43 ~ 1331
Act by the courts established for areas in which there are no United note.
States district courts having jurisdiction.
(b) (1) Nothing in this Act shall apply to working conditions of
employees with respect to which other Federal agencies, and State
agencies acting under section 274 of the Atomic Energy Act of 1954,
as amended (42 U.S.C. 2021), exercise statutory authority to pre- 73 Stat. 688.
scribe or enforce standards or regulations affecting occupational safety
or health.
(2) The safety and health standards promulgated under the Act
of June 30, 1936, commonly known as the Walsh-Healey Act (41
U.S.C. 35 et seq.), the Service Contract Act of 1965 (41 U.S.C. 351 49 Stat. 2036.
et seq.), Public Law 91-54, Act of August 9, 1969 (40 U.S.C. 333), 79 Stat. 1034.
Public Law 85-742, Act of August 23, 1958 (33 U.S.C. 941), and the 83 Stat. 96.
National Foundation on Arts and Humanities Act (20 U.S.C. 951 et 72 Stat. 835.
seq.) are superseded on the effective date of corresponding standards, 79 Stat. 845;
promulgated under t.his Act, which are determined by the Secretary ~ P. 443
to be more effective. Standards issued under the laws listed in this
paragraph and in effect on or after the effective date of this Act shall
be deemed to be occupational safety and health standards issued under
this Act, as well as under such other Acts.
(3) The Secretary shall, within three years after the effective date Report to
of this Act, report to the Congress his recommendations for. legisia- Congress.
tion to avoid unnecessary duplication and to achieve coordination
between this Act and other Federal laws.
PAGENO="0055"
737
84 STAT. 1593 Pub0 Law 91-596 - 4 - December 29, 1970
(4) Nothing in this Act shall be construed to supersede or in any
manner affect any workmen's compensation law or to enlarge or
diminish or affect in any other maimer the common law or statutory
rights, duties, or liabilities of employers and employees under any
law with respect to injuries, diseases, or death of employees arising
out of, or in the course of, employment.
DUTIES
SEC. 5. (a) Each employer-
(1) shall furnish to each of his employees employment and a
place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical
harm to his employees;
(2) shall comply with occupational safety and health standards
promulgated under this Act.
(b) Each employee shall comply with occupational safety and
health standards and all rules, regulations, and orders issued pursuant
to this Act which are applicable to his own actions and conduct.
OCCUPATIONAL SAFETY AND HEALTH STANDARDS
SEc. 6. (a) Without regard to chapter 5 of title 5~ United States
80 Stat. 381; Code, or to the other subsections of this section, the Secretary shall,
81 Stat. 195. as soon as practicable during the period beginning with the effective
5 USC 500. date of this Act and ending two years after such date, by rule promul-
gate as an occupational safety or health standard any national con-
sensus standard, and any established Federal standard, unless he deter-
mines that. the promulgation of such a standard would not result in
improved safety or health for specifically designated employees. In the
event of conflict among any such standards, the Secretary shall pro-
mulgate the standard which assures the greatest protection of the
safety or health of the affected employees.
(b) The Secretary may by rule promulgate, modify, or revoke any
occupational safety or health standard in the following manner:
(1) Whenever the Secretary, upon the basis of information sub-
mitted 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, Educa-
tion, and Welfare, the National Institute for Occupational Safety and
Health, or a State or political subdivision, or on the basis of informa-
tion developed by the Secretary or otherwise available to him, deter-
mines that a rule should be promulgated in order to serve the objec-
Advisory t.ives of this Act, the Secretary may request the recommendations of
committee, an advisory committee appointed under section 7 of this Act. The Sec-
recommendations. retary shall provide such an advisory committee with any proposals
of his own or of the Secretary of Health, Education, and Welfare,
together with all pertinent factual information developed by the Sec-
retary or the Secretary of Health, Education, and Welfare, or other-
wise 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 ninety
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 two hundred and seventy days.
PAGENO="0056"
738
December 29, 1970 - 5 Pub0 Law 91-596 84 STAT. 1594
(2) The Secretary shall publish a proposed rule promulgating, Publication
modifying, or revoking an occupational safety or health ~tandard ~ in Federal
the Federal Register and shall afford interested persons a period of Register.
tl~irty days after publication to submit written data or comments.
Where an advisory committee is appointed and the Secretary deter-
mines that a rule should be issued, he shall publish the proposed rule
within sixty days after the submission of the advisory committee's
recommendations or the expiration of the period prescribed by the
Secretary for such submission.
(3) On or before the last day of the period provided for the sub- Hearing,
mission of written data or comments under paragraph (2), any notice.
interested person may file with the Secretary written objections to the
proposed rule, stating the grounds therefor and requesting a public
he~aring on such objections. WTithin thirty days after the last day for Publication
filing such objections, the Secretary shall publish in the Federal Regis- in Federal
ter a notice specifying the occupational safety or health standard to Register.
which objections have been filed and a hearing requested, and specify-
ing a time and place for such hearing.
(4) Within sixty days after the expiration of the period provided
for the submission of written data or comments under paragraph (2),
or within sixty days after the completion of any hearing held under
paragraph (3), the Secretary shall issue a rule promulgating, modify-
ing, or revoking an occupational safety or health standard or make a
determination that a rule should not be issued. Such a rule may con-
tain a provision delaying its effective date for such period (not in
excess of ninety days) as the Secretary determines may be necessary to
insure that affected employers and employees will be informed of the
existence of the standard and of its terms and that employers affected
are given an opportunity to familiarize themselves and their employees
with the existence of the requirements of the standard.
(5) The Secretary, in promulgating standards dealing with toxic Toxic
materials or harmful physical agents under this subsection, shall set materials.
the standard which most adequately assures, to the extent. feasible, on
the basis of the best available evidence, that no employee will suffer
material impairment of health or functional capacity even if such
employee has regular exposure to the hazard dealt with by such stand-
ard for the period of his working life. Development of standards under
this subsection shall be based upon research, demonstrations, experi-
ments, and such other information as may be appropriate. In addition
to the attainment, of the highest degree of health and safety protection
for the employee, other considerations shall be the latest. available
scientific data in the field, the feasibility of the standards, and experi-
ence gained under this and other health and safety laws. Whenever
practicable, the standard promulgated shall be expressed in terms of
objective criteria and of the performance desired.
(6) (A) Any employer may apply to the Secretary for a temporary Temporary
order granting a variance from a standard or any provision thereof variance
promulgated under this section. Such temporary order shall be granted order.
only if the employer files an application which meets the requirements
of clause (B) and establishes that (i) he is unable to comply with a
standard by its effective date because of unavailability of professional
Os technical personnel or of materials and equipment needed to come
into compliance with the standard or because necessary construction
or alteration of facilities cannot be completed by the effective date,
(ii) he is taking all available steps to safeguard his employees against
the hazards covered by the standard, and (iii) he has sin effective pro-
gram for coming into compliance with the standard as quickly as
PAGENO="0057"
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84 STAT. 1595 Pub,Law 91 -596 - 6 - December 29, 1970
practicable. Any temporary order issued under this paragraph shall
prescribe the practices, means, methods, operations, and processes
which the employer must adopt and use while the order is in effect and
state in detail his program for coming into compliance with the
Notice, standard. Such a temporary order may be granted only after notice to
hearing, employees and an opportunity for a hearing: Provided, That the Sec-
retary may issue one interim order to be effective until a decision is
Renewal, made on the basis of the hearing. No temporary order may be in effect
for longer than the period needed by the employer to achieve compli-
ance with the standard or one year, whichever is shorter, except that
such an order may be renewed not more than twice (I) so long as the
requirements of this paragraph are met and (II) if an application for
renewal is filed at least 90 days prior to the expiration date of the
Time limita- order. No interim renewal of an order may remain in effect for longer
tion, than 180 days.
(B) An application for a temporary order under this paragraph
(6) shall contain:
(i) a specification of the standard or portion thereof from
which the employer seeks a variance,
(ii) a representation by the employer, supported by representa-
tions from qualified persons having firsthand knowledge of the
facts represented, that he is unable to comply with the standard
or portion thereof and a detailed statement of the reasons
therefor,
(iii) a statement of the steps he has taken and will take (with
specific dates) to protect employees against the hazard covered by
the standard,
(iv) a statement of when he expects to be able to comply with
the standard and what steps he has taken and what steps he will
take (with dates specified) to come into compliance with the stand-
ard, and
(v) a certification that he has informed his employees of the
application by giving a copy thereof to their authorized repre-
sentative, posting a statement giving a summary of the applica-
tion and specifying where a copy may be examined at the place
or places where notices to employees are normally posted, and by
other appropriate means.
A description of how employees have been informed shall be con-
tained in the certification. The information to employees shall also
inform them of their right to petition the Secretary for a hearing.
(C) The Secretary is authorized to grant a variance from any
standard or portion thereof whenever he determines, or the Secretary
of Health, Education, and Welfare certifies, that such variance is
necessary to permit an employer to participate in an experiment
approved by him or the Secretary of Health, Education, and Welfare
designed to demonstrate or. validate new and improved techniques to
safeguard the health or safety of workers.
Labels, etc, (7) Any standard promulgated under this subsection shall prescribe
the use of labels or other appropriate forms of warning as are neces-
sary to insure that employees are apprised of all hazards to which
they areexposed, relevant symptoms and appropriate emergency treat-
ment, and proper conditions and precautions of safe use or exposure.
Protective Where appropriate, such standard shall also prescribe suitable pro-
equipment, tective equipment and control or technological procedures to be used
etc. in connection with such hazards and shall provide for monitoring or
measuring employee exposure at such locations and intervals, and in
such manner as may be necessary for the protection of employees. In
PAGENO="0058"
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December 29, 1970 Pub. Law 91-596 84 STAT. 1596
addition, where appropriate, any such standard shall prescribe the Medical
type and frequency of medical examinations or other tests which shall examinations.
be made available, by the employer or at his cost, to employees exposed
to such hazards in order to most effectively determine whether the
health of such employees is adversely affected by such exposure. In the
event such medical examinations are in the nature of research, as deter-
mined by the Secretary of Health, Education, and Welfare, such exam-
inations may be furnished at the expense of the Secretary of Health,
Education, and WTelfare. The results of such examinations or tests
shall be furnished only to the Secretary or the Secretary of Health,
Education, and Welfare, and, at the request of the employee, to his
physician. The Secretary, in consultation with the Secretary of Health,.
Education, and Welfare, may by rule promulgated pursuant to sec-
tion 553 of title 5, United States Code, make appropriate modifica- 80 Stat. 383.
tions in the foregoing requirements relating to the use of labels or
other forms of warning, monitoring or measuring, and medical exami-
nations, as may be warranted by experience, information, or medical
or technological developments acquired subsequent to the promulga-
tion of the relevant standard.
(8) Whenever a rule promulgated by the Secretary differs substan- Publication
tially from an existing national consensus standard, the Secretary in Federal
shall, at the same time, publish in the Federal Register a statement Register.
of the reasons why the rule as adopted will better effectuate the pur-
poses of this Act than the national consensus standard.
(c) (1) The Secretary shall provide, without regard to the require- Temporary
ments of chapter 5, title 5, United States Code, for an emergency tem- standard.
porary standard to take immediate effect upon publication in the ~
Federal Register if he determines (A) that employees are exposed to ~
grave danger from exposure to substances or agents determined to be 8O~tat 38l
toxic or physically harmful or from new hazards, and (B) that such 81 Stat. 195.
emergency standard is necessary to protect employees from such 5 u~c 500.
danger.
(2) Such standard shall be effective until superseded by a standard Time
promulgated in accordance with the procedures prescribed in para- limitation.
graph (3) of this subsection.
(3) Upon publication of such standard in the Federal Register the
Secretary shall commence a proceeding in accordance with section
6(b) of this Act, and the standard as published shall also serve as a
proposed rule for the proceeding. The Secretary shall promulgate a
standard under this paragraph no later than six months after publica-
tion of the emergency standard as provided in paragraph (2) of this
subsection.
(d) Any affected employer may apply to the Secretary for a rule or Variance rule.
order for a variance from a standard promulgated under this section.
Affected employees shall be given notice of each such application and
an opportunity to participate in a hearing. The Secretary shall issue
such rule or order if he determ.ines on the record, after opportunity for
an inspection where appropriate and a hearing, that the proponeht of
the variance has demonstrated by a preponderance of the evidence that
the conditions, practices, means, methods, operations, or processes
used or proposed to be used by an employer will provide employment
and places of employment to his employees which are as safe and
healthful as those which would prevail if he complied with the
standard. The rule or order so issued shall prescribe the conditions
the employer must maintain, and the practices, means, methods, opera-
tions, amid processes which he must adopt and utilize to the extent they
PAGENO="0059"
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84 STAT. 1597 Pub, Law 91-596 - 8 - December 29, 1970
differ from the standard in question. Such a rule or order may be modi-
fied or revoked upon application by an employer, employees, or by the
Secretary on his own motion, in the manner prescribed for its issuance
under this subsection at any time after six months from its issuance.
Publication (e) Whenever the Secretary promulgates any standard, makes any
in Federal rule, order, or decision, grants any exe~nption or extension of time, or
Register, compromises, mitigates, or settles any penalty assessed under this Act,
he shall include a statement of the reasons for such action, which shall
be published in the Federal Register.
Petition for (f) Any person who may be adversely affected by a standard issued
judicial under this section may at any time prior to the sixtieth day after such
review, standard is promulgated file a petition challenging the validity of such
standard with the United States court of appeals for 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. The determinations of the Secretary
shall be conclusive if supported by substantial evidence in the record
considered as a whole.
(g) In determining the priority for establishing standards under
this section, the Secretary shall give due regard to the urgency of the
need for mandatory safety and health standards for particular
industries, trades, crafts, occupations, businesses, workplaces or work
environments. The Secretary shall also give due regard to the recom-
mendations of the Secretary of Health, Education, and Welfare
regarding the need for mandatory standards in determining the pri-
ority for establishing such standards.
ADVISORY COMMITTEES; ADMINISTRATION
Establishment; SEc. 7. (a) (1) These is hereby established a National Advisory
membership. Committee on Occupational Safety and Health consisting of twelve
members appointed by the Secretary, four of whom are to be desig-
nated by the Secretary of Health, Education, and `Welfare, without
80 Stat. 378. regard to the provisions of title 5, United States Code, governing
5 USC 101. appointments in the competitive service, and composed of representa-
tives of manangement, labor, occupational safety and occupational
health professions, and of the public. The Secretary shall designate
one of the public members as Chairman. The members shall be selected
upon the basis of their experience and competence in the field of occu-
pational safety and health.
(2) The Committee shall advise, consult with, and make recom-
mendations to the Secretary and the Secretary of Health, Education,
and Welfare on matters relating to the administration of the Act. The
Committee shall hold no fewer than two meetings during each calen-
Public tran- dar year. All meetings of the Committee shall be open to the public
script, and a transcript shall be kept and made available for public inspection.
(3) The members of the Committee shall be compensated in ac-
cordance with the provisions of section 3109 of title 5, United States
80 Stat. 416, Code.
(4) The Secretary shall furnish to the Committee an executive sec-
retary and such secretarial, clerical, and other services as are deemed
necessary to the conduct of its business.
(b) An advisory committee may be appointed by the Secretary to
assist him in his standard-setting functions under section 6 of this Act.
Each such committee shall consist of not more than fifteen members
PAGENO="0060"
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December 29, 1970 - 9 - Pub. Law 91..596 84 STAT. 1598
and shall include as a member one or more designees of the Secretary
of Health, Education, and Welfare, and shall include among its mem-
bers an equal number of persons qualified by experience and affiliation
to present the viewpoint of the employers involved, and of persons
similarly qualified to present the viewpoint of the workers involved,
as well as one or more representatives of health and safety agencies of
the States. An advisory committee may also include such other persons
as the Secretary may appoint who are qualified by knowledge and
experience to make a useful contribution to the work of such com-
inittee, including one or more~epresentatives of professional organi-
zations of technicians or ~ofessionals specializing in occupational
safety or health, and one or more representatives of nationally recog-
nized standards-producing organizations, but the number of persons
so appointed to any such advisory committee shall not exceed the num-
ber appointed to such committee as representatives of Federal and
State agencies. Persons appointed to advisory committees from pri-
vate life shall be compensated in the same manner as consultants or
experts under section 3109 of title 5. United States Code. The Secre- 80 Stat. 416.
tary shall pay to any State which is the employer of a member of
such a cOmmittee who is a representative of the health or safety agency
of that State, reimbursement sufficient to cover the actual cost to
the State resulting from such representativ&s membership on such
committee. Any meeting of such committee shall be open to the public Recordkeeping.
and an accurate record shall be kept and made available to the public.
No member of such committee (other than representatives of employ-
ers and employees) shall have an economic interest in any proposed
rule.
(c) In carrying out his responsibilities under this Act, the Secretary
is authorized to-
(1) use, with the consent of any Federal agency, the services,
facilities, and personnel of such agency, with or without reim-
bursement, and with the consent of any State or political subdi-
vision thereof, accept and use the services, facilities, and personnel
of any agency of such State or subdivision w-ith reimbursement;
and
(2) employ experts and consultants or organizations thereof as
authorized by section 3109 of title 5, Fnited States Code, except
that contracts for such employment may be renewed annually;
compensate individuals so employed at rates not in excess of the
iate specified at the time of service for grade GS-18 under section
5332 of title 5, United States Code, including traveltime, and ~, p. 198-1.
allow them while away from their homes or regular places of busi-
ness, travel expenses (including per diem in lieu of subsistence) as
authorized by section 5703 of title 5, `United States Code, for per- 80 Stat. 499;
sons in the Government service employed intermittently, while so 83 Stat. 190.
employed.
INSPECTIONS. INvESTIGATIONS. AND RECORDKEEPING
SEC. 8. (a) In order to carry out the purposes of this Act, the Secre-
tary, upon presenting appropriate credentials to the owner, operator,
or agent. in charge, is authorized-
(1) to enter without delay and at reasonable times any factory,
plant, establishment, construction site, or other area, workplace or
environment where work is performed by an employee of an
employer; and
PAGENO="0061"
- 10 - December 29, 1970
(2) to u1s1)eet and investigate during regular working hours
and at other reasonable times, and within reasonable limits and
in a reasonable maniier, any such place of employment and ~tll
pertinent conditions, structures, machines, apparatus, devices,
equipment, and materials therein, and to question privately any
such employer, owner, operator, agent or employee.
(b) In making his inspections and investigations under this Act
the Secretary may require the attendance and testimony of witnesses
and the production of evidence under oath. Witnesses shall be paid
the same fees and mileage that are paid witnesses in the courts of the
United States. In case of a contumacy, failure, or refusal of any per-
son to obey such au order, any district court of the United State~ or
the United States courts of any territory or possession, within the
jurisdiction of which such person is found, or resides or transacts
business, upon the application by the Secretary, shall have jurisdic-
tion to issue to such person an order requiring such person to appear
to produce evidence if, as, and when so ordered, and to give testimony
relating to the matter under investigation or in question, and any fail-
ure to obey such order of the court may be punished by said court as
a contempt thereof.
(c) (1) Each employer shall make, keep and preserve, and make
available to the Secretary or the Secretary of Health, Education, and
`Welfare, such records regarding his activities relating to this Act as
the Secretary, in cooperation with the Secretary of Health, Education,
and Welfare, may prescribe by regulation as necessary or appropriate
for the enforcement of this Act or for developing information regard-
ing the causes and prevention of occupational accidents and ill-
nesses. In order to carry out the provisions of this paragraph such
regulations may include provisions requiring employers to conduct
periodic inspections. The Secretary shall also issue regulations requir-
ing that employers, through posting of notices or other appropriate
means, keep their employees informed of their protections and obliga-
tions under this Act, including the provisions of applicable standards.
(2) The Secretary, in cooperation with the Secretary of Health,
Education, and Welfare, shall prescribe regulations requiring employ-
ers to maintain accurate records of, and to make periodic reports on,
work-related deaths, injuries and illnesses other than minor injuries
requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or
transfer to another job.
(3) The Secretary, in cooperation with the Secretary of Health,
Education, and Welfare, shall issue regulations requiring employers
to maintain accurate records of employee exposures to potentially
toxic materials or harmful physical agents which are required to be
monitored or measured under section 6. Such regulations shall provide
employees or their representatives with an opportunity to observe
such monitoring or measuring, and to have access to the records
thereof. Such regulations shalT also make appropriate provision for
each employee or former employee to have access to such records as will
indicate his own exposure to toxic materials or harmful physical
agents. Each employer shall promptly notify any employee who has
been or is being exposed to toxic materials or harmful physical agents
in concentrations or at levels which exceed those prescribed by an
applicable occupational safety and health standard promulgated under
section 6, and shall inform any employee who is being thus exposed
of the corrective action being taken.
743
84 STAT. 1599
Pub. Law 91-596
Subpoena
power.
Re cordkeeping.
Work-related
deaths, etc.;
reports.
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December 29, 1970 - 11 - Pub0 Law 91-596
84 STAT. 1600
(d) Any information obtained by the Secretary, the Secretary of
Health, Education, and Welfare, or a State agency under this Act
sl~all be obtained with a minimum burden upon employers, especially
those operating small businesses. Unnecessary duplication of efforts in
obtaining information shall be reduced to the maximum extent
feasible.
(e) Subject to regulations issued by the Secretary, a representative
of the employer and a representative authorized by his employees shall
be given an opportunity to accompany the Secretary or his authorized
representative during-tlre--phy&ical inspection of any workplace under
subsection (a) for the purpose of aiding such inspection. Where there
is no authorized employee representative, the Secretary or his
authorized representative shall consult with a reasonable number of
employees concerning matters of health and safety in the workplace.
(f) (1) Any employees or representative of employees who believe
that a violation of a safety or health standard exists that threatens
physical harm, or that. an imminent danger exists, may request an
inspection by giving notice to the Secretary or his authorized repre-
sentative of such violation or danger. Any such notice shall be reduced
to writing, shall set forth with reasonable particularity the grounds
for the notice, and shall be signed by the employees or representative
of employees, and a copy shall be provided the employer or his agent
no later than at the time of inspection, except that, upon the request
of the person giving such notice, his name and the names of individual
employees referred to therein shall not appear in such copy or on any
record published, released, or made available pursuant to subsection
(g) of this section. If upon receipt of such notification the Secretary
determines there are reasonable grounds to believe that such violation
or danger exists, lie shall make a special inspection in accordance with
the provisions of this section as soon as practicable, to determine if
such violation or danger exists. If the Secretary determines there are
no reasonable grounds to believe that a violation or danger exists he
shall notify the employees or representative of the employees in writ-
ing of such determination.
(2) Prior to or during any inspection of a workplace, any employ-
ees or representative of employees employed in such workplace may
notify the Secretary or any representative of the Secretary responsible
for conducting the inspection, in writing, of any violation of this Act
which they have reason to believe exists in such workplace. The Sec-
retary shall, by regulation, establish procedures for informal review
of any refusal by a representative of the Secretary to issue a citation
with respect to any such alleged violation and shall furnish the
employees or representative of employees requesting such review a
written statement of the reasons for the Secretary's final disposition
of the case.
(g) (1) The Secretary and Secretary of Health, Education, and Reports,
Welfare are authorized to compile, analyze, and publish, either in publication.
summary or detailed form, all reports or information obtained under
this section.
(2) The Secretary and the Secretary of Health, Education, and Rules and
Welfare shall each prescribe such rules and regulations as lie may regulations.
deem necessary to carry out their responsibilities under this Act,
including rules and regulations dealing with the inspection of an
employer~s establishment.
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Pub0 Law 91-596 - 12 - December 29, 1970
84 STAT. 1601
CITATIOXS
SEC.9. (a) If, U~Ofl inspection or investigation, the Secretary or his
authorized representative believes that an employer has violated a
reqmrement of section 5 of this Act, of any standard, rule or order
promulgated pursuant to section 6 of this Act. or of ally regulations
prescribed 1~ursiiaiit to this Act, lie shall with reasonable promptness
issue a citation to the employer. Each citation shall be in writing and
shall describe with part,icularity the. nature of the violation, including
a reference to the provision of the Act, standard, rule, regulation, ot
order alleged to have been violated. In addition, the citation shall fix
a reasonable time for the abatement of the violation. The Secretary
may prescribe procedures for the issuance of a notice in lieu of a ci~a-
flon with respect to de nunimis violations which have no direct or
iinmediat.e relationship to safety or health.
(b) Each citation issued under this section. or a~ copy or copies
hereof, shall be prominently posted, as prescribed in regulations
issued by the Secretary, at or near each place a violation referred to in
the citation occurred.
Limitation. (c) No citation may be issued under this section after the expiration
ol six months following the occurrence of any violation.
PROCEDURE FOR ENFORCEMENT
Szc. 10. (a) If. after an inspection or investigation, the Secretary
issues a citation under section 9(a), lie shall, within a reasonable time
after the termination of such inspection 01' investigation. notify the
employer by certified mail of the penalty. if any. proposed to be
assessed undei' section 17 and that the employer has fifteen working
(lays within which to notify the Secretary that he wishes to contest the
citation or l)l'oPosed assessment of penalty. If, within fifteen working
days front the receipt of the notice issued by the Secretary the
employer fails to notify the Secretary that. he intends to contest the
citation or proposed assessment of penalty, and 110 notice is filed by
any employee oi' representative of employees under subsection (c)
within such time, the citation and the assessment, as proposed, shall be
deemed a final order of the Commission and not subject to review by
any court or agency.
(b) If the Secretary has reason to believe that au employer has
failed to correct a violation for which a citation has been issued within
the period permitted for its correction (which period shall not begin
to run until the entry of a final order by the Commission in the case of
any review proceedings under this sectioii initiated by the employer
in good faith and not solely for delay or avoidance of penalties), the
Secretary shall notify the employer by certified mail of such failure
and of the penalty proposed to be assessed under section 17 by reason
of such failure, and that the employer has fifteen working days within
which to not.ify the Secretary that he wishes to contest the Secretary's
notification or the proposed assessment of penalty. If, within fifteen
working days from the receipt of notification issued by the Secretary,
the empIoy~i' fails to notify the Secretary that he intends to contest
the notification or proposed assessment of penalty, the notification and
assessment, as proposed, shall be deemed a final order of the Com-
mission and not subject to review by any court or agency.
(c) If an employer notifies the Secretary that he intends to contest
a citation issued under section 9(a) or notification issued under sub-
section (a) or (b) of this section, or if, w-ithin fifteen working days
PAGENO="0064"
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December 29, 1970 - 13 Pub. Law 91-.596
84 STAT. 1602
of the issuance of a citation under section 9(a), any employee or rep-
resentative of employees files a notice with the Secretary alleging that
th~ period of time fixed in the citation for the abatement of the viola-
tion is unreasonable, the Secretary shall immediately advise the Corn-
mission of such notification, and the Commission shall 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 80 Stat. 384.
section). The Commission shall thereafter issue an order, based on
findings of fact, affirming, modifying, or vacating the Secretary's
citation or proposed penalty, or directing other appropriate relief, and
such order shall become final thirty days after its issuance. Upon a
showing by an employer of a good faith effort to comply with the
abatement. requirements of a citation, and that abatement has not been
completed because of factors beyond his reasonable control, the Secre-
tary, after an op1)oitUhiity for a hearing as provided in this subsection,
shall issue an order affirming or modifying the abatement require-
ments in such citation. The rules of procedure prescribed by the Com-
mission shall provide affected employees or representatives of affected
employees an opportunity to participate as parties to hearings under
this subsection.
JUDICIAL REVIEW
SEC. 11. (a) Any person adversely affected or aggrieved by an order
of the Commission issued under subsection (c) of section 10 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 where
the employer has its principal office, or in the Court of Appeals for
the District of Columbia Circuit, by filing in such court within sixty
(lays 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 jurisdiction 72 Stat. 941;
of the proceeding and of the question determined therein, and shall 80 Stat. 1323.
have power to grant such temporary relief or restraining order as it
deems just and proper, and 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. The commencement of proceedings under this subsection
shall not, unless ordered by the court, operate as a stay of the order of
the Commission. No objection 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 satisfac-
tion 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 addi-
tional evidence to be taken before the Commission and to be made a
1)art 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 findings, which find-
ings with respect to questions of fact, if supported by substantial evi-
PAGENO="0065"
747
84 STAT. 1603 Pub. Law 91-596 - 14 - December 29, 1970
dence on the record considered as a whole, shall be conclusive, and its
recommendations, if any, for the modification or setting aside of its
original order. Upon the filing of the record with it, the jurisdiction
of the court shall be exclusive and its judgment and decree 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,
62 Stat * 928. United States Code. Petitions filed under this subsection shall be heard
expeditiously.
(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 which the employer has its principal office,
and the provisions of subsection (a) shall govern such proceedingsto
the extent applicable. if no petition for review, as provided in subsec-
tion (a), is filed within sixty days after service 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
Seci'etary after the expiration of such sixty-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 10, the clerk of the court, unless
otherwise ordered by the court, shall forthwith enter a decree enforc-
ing the order and shall transmit a copy of such decree to the Sec-
retary and the employer 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 17, in addition to invoking any
other available remedies.
(c) (1) No person shall discharge or in any manner discriminate
against any employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related to
this Act or has testified or is about to testify in any such proceeding or
because of the exercise by such employee on behalf of himself or others
of any right afforded by this Act.
(2) Any employee who believes that he has been discharged or other-
wise discriminated against by any person in violation of this subsec-
tion may, within thirty days after such violation occurs, file a
complaint with the Secretary alleging such discrimination. Upon
receipt of such complaint, the Secretary shall cause such investigation
to be made as lie deems appropriate. If upon such investigation, the
Secretary determines that the provisions of this subsection have been
violated, he shall bring an action in any appropriate United States dis-
trict court against such person. In any such action the United States
district courts shall have jurisdiction, for cause shown to restrain vio-
lations of paragraph (1) of this subsection and order all appropriate
relief including rehiring or reinstatement of the employee to his for-
mer position with back pay.
(3) Within 90 days of the receipt of a complaint filed under this
subsection the Secretary shall notify the complainant of his determina-
tion under paragraph 2 of this subsection.
THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Establishment; SEC. 12. (a) The Occupational Safety and Health Review Commis-
membership. sion is hereby established. The Commission shall be composed of three
members who shall be appointed by the President, by and with the
advice and consent of the Senate, from among persons who by reason
75.423 0 74 - pt. 3 5
PAGENO="0066"
748
December 29, 1970 - 15 - Pub, Law 91-596
84 STAT. 1604
of training, education, or experience are qualified to carry out the
functions of the Commission under this Act. The President shall desig-
nate one of the members of the Commission to serve as Chairman.
`(b) The terms of members of the Commission shall be six years Terms.
except that (1) the members of the Commission first taking office shall
serve, as designated by the President at the time of appointment, one
for a term of two years, one for a term of four years, and one for a
term of six years, and (2) a vacancy caused by the death, resignation,
or removal of a member prior to the expiration of the term for which
he was appointed shall be filled only for the remainder of such
unexpired term. A member of the Commission may be removed by the
President for inefficiency, neglect of duty, or malfeasance in office.
`(c) (1) Section 5314 of title 5, United States Code, is amended by 80 Stat. 460.
adding at the end thereof the following new paragraph:
"(57) Chairman, Occupational Safety and Health Review
Commission."
(2) Section 5315 of title 5, United States Code, is amended by add- ~ p. 776.
ing at the end thereof the following new paragraph:
"(94) Members, Occupational Safety and Health Review
Commission."
(d) The principal office of the Commission shall be in the District Location.
of Columbia. Whenever the Commission deems that the convenience
of the public or of the parties may be promoted, or delay or expense
may be minimized, it may hold hearings or conduct other proceedings
at any other place.
(e) The Chairman shall be responsible on behalf of the Commission
for the administrative operations of the Commission and shall appoint
such hearing examiners and other employees as he 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, 5 USC 5101,
relating to classification and &eneral Schedule pay rates: Provided, 5331.
That assignment, removal and compensation of hearing examiners ~ P. 198-1.
shall be in accordance with sections 3105, 3344, 5362, and 7521 of title 5,
United States Code.
(f) For the purpose of carrying out its functions under this Act, two Quorum.
members of the Commission shall constitute a quorum and official
action can be taken only on the affirmative vote of at least two
members.
(g) Every official act of the Commission shall be entered of record, Public records.
and its hearings and records shall be open to the public. The Com-
mission is authorized to make such rules as are necessary for the orderly
transaction of its proceedings. Unless the Commission has adopted a
different rule, its proceedings shall be in accordance with the Federal
Rules of Civil Procedure. 28 USC app.
(Ii) The Commission may order testimony to be taken by deposition
in any proceedings pending before it at any state of such proceeding.
Any person may be compelled to appear and depose, and to produce
books, papers, or documents, in the same manner as witnesses may be
compelled to appear and testify and produce like documentary
evidence before the Commission. Witnesses whose depositions are taken
under this subsection, and the persons taking such depositions, shall be
entitled to the same fees as are paid for like services in the courts of
the United States.
(i) For the purpose of any proceeding before the Commission, the
Irovisions of section 11 of the National Labor Relations Act (29
U.S.C. 161) are hereby made applicable to the jurisdiction and powers 61 Stat. 150;
of the Commission. ~ p. 930.
PAGENO="0067"
749
Pub. Law 91-596 - 16 - December 29, 1970
84 STAT. 1605
Report. (j) A hearing examiner appointed by the Commission shall hear,
and make a determination upon, any proceeding instituted before the
Commission and any motion in connection therewith, assigned to such
bearing examiner by the Chairman of the Commission, and shall make
a report of any such determination which constitutes his final disposi-
tion of the proceedings. The report of the hearing examiner shall
become the final order of the Commission within thirty days after such
report by the hearing examiner, unless within such period any Com-
mission member has directed that such report shall be reviewed by the
Commission.
(k) Except as otherwise provided in this Act, the hearing examiners
shall be subject to the laws governing employees in the classified civil
service, except that appointments shall be made without regard to
80 Stat. 453. section 5108 of title 5, United States Code. Each hearing examiner
shall receive compensation at a rate not less than that prescribed for
~ p. 198-1. G'S-16 under section 5332 of title 5, United States Code.
PROCEDURES TO C0UNTERAC~ IMMINENT DANGER5
SEC. 13. (a) The United States district courts shall have jurisdic-
tion, Upon Petition of the Secretary, to restrain any conditions or
practices in any place of employment which are such that a danger
exists which could reasonably be expect.ed to cause death or serious
physical harm immediately or before the imminence of such danger
can be eliminated through the enforcement procedures otherwise
provided by this Act. Any order issued under this section may require
such steps to be taken as may be necessary to avoid, correct, or remove
such imminent danger and prohibit the employment or presence of any
individual in locations or under conditions where such immineiit
danger exists, except individuals whose presence is necessary to avoid,
correct, or remove such imminent danger or to maintain the capacity
of a continuous process operation to resume normal operations without
a complete cessation of operations, or where a cessation of operations is
necessary, to permit. su(h to be accomplished in a safe and orderly
manner.
(b) Upon the filing of any such petition the district court shall have
jurisdiction to grant. such injunctive relief or temporary restraining
order pending the outcome of an enforcement proceeding pursuant to
this Act. The proceeding shall be as provided by Rule 65 of the Fed-
28 usc app. eral Rules, Civil Procedure, except that no temporary restraining
order issued without notice shall be effective for a period longer than
five days.
(c) Whenever and as soon as an inspector concludes that conditions
or practices described in subsection (a) exist in any place of employ-
mnent, lie shall inform the affected employees and employers of the
danger and that lie is recommending to the Secretary that relief be
sought.
(d) If the Secretary arbitrarily or capriciously fails to seek relief
under this section, any employee who may be injured by reason of
such failure, or the representative of such employees, might bring an
action against the Secretary in the United States district court for the
district in which. the imminent danger is alleged to exist or the
employer has its principal office, or for the District of Columbia, for a
writ of mandamus to compel the Secretary to seek such an order and
for such further relief as may be appropriate.
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December 29, 1970 - 17 Pub, Law 91-596
84 STAT. 1606
REPRESENTATION IN CIVIL LITIGATION
SEc. 14. Except as provided in section 518(a) of title 28, United
States Code, relating to litigation before the Supreme Court, the 80 Stab. 613.
Solicitor 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.
CONFIDENTIALITY OF TRADE SECRETS
SEC. 15. All information reported to or otherwise obtained by the
Secretary or his representative in connection with any inspection or
proceeding under this Act which contains or which might reveal a
trade secret referred to in section 1905 of title 18 of the United States
Code shall be considered confidential for the purpose of that section, 62 Stat. 791.
except that such information may be disclosed to other officers or
employees concerned with carrying out this Act or when relevant in
any proceeding under this Act. In any such proceeding the Secretary,
the Commission, or the court shall issue such orders as may be
appropriate to protect the confidentiality of trade secrets.
VARIATIONS, TOLERANCE5, AND ExEMPTIONS
SEC. 16. The Secretary, on the record, after notice and opportunity
for a hearing may provide such reasonable limitations and may make
such rules and regulations allowing reasonable variations, tolerances,
and exemptions to and from any or all provisions of this Act as he may
find necessary and proper to avoid serious impairment of the national
defense. Such action shall not be in effect for more than six months
without notification to affected employees and an opportunity being
afforded for a hearing.
PENALTIES
SEC. 17. (a) Any employer who willfully or repeatedly violates
the requirements of section 5 of this Act, any standard, rule, or order
promulgated pursuaiit to section 6 of this Act, or regulations pre-
scribed pursuant to this Act, may be assessed a civil penalty of not
more than $10,000 for each violation.
(b) Any employer who has received a citation for a serious viola-
tion of the requirements of section 5 of this Act, of any standard, rule,
or order promulgated pursuant to section 6 of this Act, or of any
regulations prescribed pursuant to this Act, shall be assessed a civil
penalty of up to $1,000 for each such violation.
(c) Any employer who has received a citation for a violation of the
requirements of section 5 of this Act, of any standard, rule, or order
promulgated pursuant to section 6 of this Act, or of regulations
prescribed pursuant to this Act, and such violation is specifically
determined not to be of a serious nature, may be assessed a civil
penalty of up to $1,000 for each such violation.
(d) Any employer who fails to correct a violation for which a cita-
tion has been issued under section 9(a) within the period permitted
for its correction (which period shall not begin to run until the date
of the final order of the Commission in the case of any review proceed-
ing under section 10 initiated by the employer in good faith and not
solely for delay or avoidance of penalties), may be assessed a civil
penalty of not more than $1,000 for each day during which such
failure or violation continues.
PAGENO="0069"
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Pub. Law 91-596 - 18 December 29, 1970
84 STAT. 1607
(e) Any employer who willfully violates any standard, rule, or
order promulgated pursuant to section 6 of this Act, or of any regula-
tions prescribed pursuant to this Act, and that violation caused death
to any employee, shall, upon conviction, be punished by a fine of not'
more than $10,000 or by imprisonment for not more than six months,
or by both; except that if the conviction is for a violation committed
after a first conviction of such person, punishment shall be by a fine of
not more than $20,000 or by imprisonment for not more than one year,
or by both.
(f) Any person who gives advance notice of any inspection to be
conducted under this Act, without authority from the Secretary or
his designees, shall, upon conviction, be punished by a fine of not more
than $1,000 or by imprisonment for not more than six months, or by~
both.
(g) Whoever knowingly makes any false statement, representation,
or certification in any application, record, report, plan, or other docu-
ment 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 six months, or by both.
65 Stat. 721; (h) (1) Section 1114 of title 18, TJnited States Code, is hereby
79 Stat. 234. amended by striking out "designated by the Secreti~ry of Health,
Education, and Welfare to conduct investigations, or inspections
under the Federal Food, Drug, and Cosmetic Act" and inserting in
lieu thereof `~or of the Department of Labor assigned to perform
investigative, inspection, or law enforcement functions".
(2) Notwithstanding the provisions of sections 1111 and 1114 of
62 Stat * 756. title 18, United States Code, whoever, in violation of the provisions of
section 1114 of such title, kills a person while engaged in or on account
of the performance of investigative, inspection, or law enforcement
functions added to such section 1114 by paragraph (1) of this sub-
section, and who would otherwise be subject to the penalty provisions
of such section 1111, shall be punished by imprisonment for any term
of years or for life.
(i) Any employer who violates any of the posting requirements, as
prescribed under the provisions of this Act, shall be assessed a civil
penalty of up to $1,000 for each violation.
(j) The Commission shall have authority to assess all civil penalties
provided in this section, giving due consideration to the appropriate-
ness of the penalty with respect to the size of the business of the
employer being charged, the gravity of the violation, the good faith of
the employer, and the history of previous violations.
(k) For purposes of this section, a serious violation shall be deemed
to exist in a place of employment if there is a substantial probability
that death or serious physical harm could resuit from a condition
which exists, or from one or more practices, means, methods, opera-
tions, or processes which have been adopted or are in use, in such place
of employment unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the violation.
(1) Civil penalties owed under this Act shall be paid to the Secre-
tary 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 is alleged to have occurred or
where the employer has its principal office.
PAGENO="0070"
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December 29, 1970 - 19 - Pub. Law 91-596
84 STAT. 1608
STATE JURISDICTION AND STATE PLANS
SEc. 18. (a) Nothing in this Act shall prevent any State agency
~r court from asserting jurisdiction under State law over any occu-
l)ational safety or health issue with respect to which no standard
is in effect under section 6.
(b) Any State which, at any time, desires to assume responsibility
for development and enforcement therein of occupational safety and
health standards relating to any occupational safety or health issue
with respect to which a Federal standard has been promulgated under
section 6 shall submit a State plan for the development of such stand-
ards and their enforcement.
(c) The Secretary shall approve the plan submitted by a State
under subsection (b), or any modification thereof, if such plan in his
judgment-
(1) designates a State agency or agencies as the agency or
agencies responsible for administering the plan throughout the
State,
(2) provides for the development and enforcement of safety
and health standards relating to one or more safety or health
issues, which standards (and the enforcement of which standards)
are or will be at least as effective in providing safe and healthful
employment and places of employment as the standards promul-
gated under section 6 which relate to the same issues, and which
standards, when applicable to products which are distributed or
used in interstate commerce, are required by compelling local
conditions and do not unduly burden interstate commerce,
(3) provides for a right of entry and inspection of all work-
places subject to the Act which is at least as effective as that pro-
vided in section 8, and includes a prohibition on advance notice
of inspections,
(4) contains satisfactory assurances that such agency or agen-
cies have or will have the legal authority and qualified personnel
necessary for the enforcement of such standards,
(5) gives satisfactory assurances that such State will devote
adequate funds to the administration and enforcement of such
standards,
(6) contains satisfactory assurances that such State will, to the
extent permitted by its law, establish and maintain an effective and
comprehensive occupational safety and health program applicable
to all employees of public agencies of the State and its political
subdivisions, which program is as effective as the standards con-
tained in an approved plan,
(7) requires employers in the State to make reports to the Sec-
retary in the same manner and to the same extent as if the plan
were not in effect, and
(8) provides that the State agency will make such reports to
the Secretary in such form and containing such information, as
the Secretary shall from time to time require.
(d) If the Secretary rejects a plan submitted under subsection (b), Notice of
he shall afford the State submitting the plan due notice and oppor- hearing.
tunity for a hearing before so doing.
(e) After the Secretary approves a State plan submitted under
subsection (b), he may, but shall not be required to, exercise his
authority under sections 8, 9, 10, 13, and 17 with respect to comparable
standards promulgated under section 6, for the period specified in the
next sentence. The Secretary may exercise the authority referred to
above until lie determines, on the basis of actual operations under the
PAGENO="0071"
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Pub0 Law 91-596 - 20 - December 29, 1970
84 STAT. 1609
State plan, that the criteria set forth in subsection (c) are being
applied, but he shall not make such determination for at. least. three
years after the plans approval under subsection (c). Upon making the
determination referred to in the preceding sentence, the provisions of'
sections 5(n) (2), 8 (except for the puipose of carrying out subsection
(f) of this section), 9, 10, 13, and 17, and standards promulgated under
section 6 of this Act, shall not apply with respect to any occupational
safety or health issues covered under the plan, but the Secretary may
retain jurisdiction under the above provisions in any proceeding com-
menced under section 9 or 10 before the date of determination.
Continuing (f) The Secretary shall, oii the basis of reports submitted by the
evaluation. State agency and his own inspections make a continuing evaluation of
the manner in which each State having a plan approved under this~
section is carrying out such plan. Whenever the Secretary finds, after
affording due notice and opportunity for a hearing, that in the admin-
stration of the State plan there is a failure to comply substantially
with any provision of the State plan (or any assurance contained
therein), lie shall notify the State agency of his withdrawal of
approval of such plan and upon receipt of such notice such plan shall
(ease to be in effect, but the State may retain jurisdiction in any case
commenced before the withdrawal of the plan in order to enforce
standards under the plal1 whenever the issues involved do not relate
to the reasons for the withdrawal of the plan.
Plan rejection, (g) The State may obtain a review of a decision of the Secretary
review, withdrawing approval of or rejecting its plan by the United States
court of appeals for the circuit in which the State is located by filing
in such court. within thirty days following receipt of notice of such
decision a petition to modify or set aside in whole or in part the action
of the Secretary. A copy of such petition shall forthwith be served
upon the Secretary, and thereupon the Secretary shall certify and file
in the court the record upon which the decision complained of was
72 Stat. 941; issued as provided in section 2112 of title 28, United States Code.
80 Stat * 1323. Unless the court finds that the Secretary's decision in rejecting a pro-
posed State plan or withdrawing l1is approval of such a plan is not sup-
ported by substantial evidence the court shall affirm the Secretary's
decision. The judgment of the court shall be subject to review by the
Supreme Court of the United States upon certiorari or certification
62 Stat. 928. as provided in section 1254 of title 28, United States Code.
(Ii) The Secretary may enter into an agreement with a State under
which the State will be permitted to continue to enforce one or more
occupational health and safety standards in effect in such State until
final action is taken by the Secretary with respect to a plan submitted
by a State under subsection (b) of this section, or two years from the
date of enactment of this Act, whichevet is earlier.
FEDERAL AGENCY SAFETY PROGRAMS AND RESPONSIBILITiES
Sxc. 19. (a) It shall be the responsibility of the head of each Fed-
eral agency to establish and maintain an effective and comprehensive
occupational safety and health program which is consistent with the
standards promulgated under section 6. The head of each agency shall
(after consultation with representatives of the employees thereof)-
(1) provide safe and healthful places and conditions of employ-
inent, consistent with the standards set under section 6;
(2) acquire, mamtam, and require the use of safety equipment,
personal protective equipment, and devices reasonably necessary
to protect employees;
PAGENO="0072"
December 29, 1970 - 21 -
(3) keep adequate records of all occupational accidents and ill-
nesses for proper evaluation and necessary corrective action;
(4) consult with the Secretary with regard to the adequacy as
to form and content of records kept pursuant to subsection (a) (3)
of this section; and
(5) make an annual report to the Secretary with `respect to
occupational accidents and injuries and the agency~s program
under this section. Such report shall include any report submitted
under section 7902(e) (2) of title 5, United States Code.
(b) The Secretary shall report to the President a summary or digest
of reports submitted to him under subsection (a) (5) of this section,
~together with his evaluations of and recommendations derived from
such reports. The President shall transmit annually to the Senate and
the House of Representatives a report of the activities of Federal
agencies under this section.
(c) Section 7902(c) (1) of title 5, United States Code, is amended
by inserting after "agencies" the following: "and of labor organiza-
tions representing employees".
(d) The Secretary shall have access to records and reports kept
and filed by Federal agencies pursuant to subsections (a) (3) and (5)
of this section unless those records and reports are specifically required
by Executive order to be kept secret in the interest of the national
defense or foreign policy, in which case the Secretary shall have access
to such information as will not jeopardize national defense or foreign
policy. -
RESEARCH AND RELATED ACTIVITIES
SEC. 20. (a) (1) The Secretary of Health, Education, and Welfare,
after consultation with the Secretary and with other appropriate
Federal departments or agencies, shall conduct (directly or by grants
or contracts) research, experiments, and demonstrations relating to
occupational safety and health, including studies of psychological
factors involved, and relating to innovative methods, teclmiques, and
approaches for dealing with occupational safety and health problems.
(2) The Secretary of Health, Education, and Welfare shall from
time to time consult with the Secretary in order to develop specific
plans for such research, demonstrations, and experiments as are neces-
sary to produce criteria, including criteria identifying toxic sub-
stances, enabling the Secretary to meet. his responsibility for the
formulation of safety and health standards under this Act.; and the
Secretary of Healt.h, Education, and Welfare, on the basis of such
research, demonstrations, and experiments and any other information
available to him, shall develop and publish at least annually such
criteria as will effectuate the purposes of this Act.
(3) The Secretary of Health, Education, and Welfare, on the basis
of such research, demonstrations, and experiments, and any other
information available to him, shall develop criteria dealing with toxic
materials and harmful physical agents and substances which will
describe exposure levels that are safe for various periods of employ-
ment, including but not limited to the exposure levels at which no
employee will suffer impaired health or functional capacities or
diminished life expectancy as a result of his work experience.
(4) The Secretary of Health, Education, and Welfare shall also
conduct special research, experiments, and demonstrations relating
to occupational safety and health as are necessary to explore new
problems, including those created by new technology in occupational
safety and health, which may require ameliorative action beyond that.
754
Pub. Law 91-596
84 STAT. 1610
Re cordkeeping.
Annual report.
80 Stat. 530.
Report to
President.
Report to
Congress.
Records, etc.;
availability.
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Pub, Law 91-596 - 22 - December 29, 1970
34 STAT. 1611
which is otherwise provided for in the operating provisions of this
Act. The Secretary of Health, Education, and Welfare shall also
conduct research into the motivational and behavioral factors relating
to the field of occupational safety and health.
Toxic sub- (5) The Secretary of Health, Education, and WTelfare, in order to
stances, comply with his responsibilities under paragraph (2), and in order
records, to develop needed information regarding potentially toxic substances
or harmful physical agents, may prescribe regulations requirmg
employers to measure, record, and make reports on the exposure of
employees to substances or physical agents which the Secretary of
Health, Education, and Welfare reasonably believes may endanger
Medical the health or safety of employees. The Secretary of Health, Education,
examinations, and Welfare also is authorized to establish such programs of medical
examinations and tests as may be necessary for determining the inci-
dence of occupational illnesses and the susceptibility of employees to
such illnesses. Nothing in this or any other provision of this Act shall
be deemed to authorize or require medical examination, immunization,
or treatment for those who object thereto on religious grounds, except
where such is necessary for the protection of the health or safety of
others. Upon the request of any employer who is required to measure
and record exposure of employees to substances or physical agents as
provided under this subsection, the Secretary of Health, Education,
and WTelfare shall furnish full financial or other assistance to such
employer for the purpose of defraying any additional expense
incurred by him in carrying out the measuring and recording as
provided in this subsection.
Toxic sub- (6) The Secretary of Health, Education, and Welfare shall publish
stances, within six months of enactment of this Act and thereafter as needed
publication, but at least annually a list of all known toxic substances by generic
family or other useful grouping, and the concentrations at which such
toxicity is known to occur. He shall determine following a written
request by any employer or authorized representative of employees,
specifying with reasonable particularity the grounds on which the
request is made, whether any substance normally found in the place
of employment has potentially toxic effects in such concentrations as
used or found; and shall submit such determination both to employers
and affected employees as soon as possible. If the Secretary of Health,
Education, and Welfare determines that any substance is potentially
toxic at the concentrations in which it is used or found in a place of
employment, and such substance is not covered by an occupational
safety or health standard promulgated under section 6, the Secretary
of Health, Education, and Welfare shall immediately submit such
determination to the Secretary, together with all pertinent criteria.
Annual (7) `Within two years of enactment of this Act, and annually there-
studies, after the Secretary of Health, Education, and Welfare shall conduct
and publish industrywide studies of the effect of chronic or low-level
exposure to industrial materials, processes, and stresses on the poten-
tial for illness, disease, or loss of functional capacity in aging adults.
Inspections. (b) The Secretary of Health, Education, and Wrelfare is authorized
to make inspections and question employers and employees as pro-
vided in section 8 of this Act in order to carry out his functions and
responsibilities under this section.
Contract (c) The Secretary is authorized to enter into contracts, agreements,
authority, or other arrangements with appropriate public agencies or private
organizations for the purpose of conducting studies relating to his
responsibilities under this Act. In carrying out his responsibilities
PAGENO="0074"
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December 29, 1970 23 - Pub0 Law 91-596
84 STAT. 1612
imder this subsection, the Secretary shall cooperate with the Secretary
of Health, Education, and Welfare in order to avoid any duplication
of efforts under this section.
(d) Information obtained by the Secretary and the Secretary of
Health, Education, and Welfare under this section shall be dissemi-
nated by the Secretary to employers and employees and organizations
thereof.
(e) The functions of the Secretary of Health, Education, and Wel- Delegation of
fare under this Act shall, to the extent feasible, be delegated to the functions.
Director of the National Institute for Occupational Safety and Health
established by section 22 of this Act.
TRAINING AND EMPLOYEE EDUCATION
SEC. 21. (a) The Secretary of Health, Education, and Wrelfare,
after consultation with the Secretary and with other appropriate Fed-
eral departments and agencies, shall conduct, directly or by grants or
contracts (1) education programs to provide an adequate supply of
qualified personnel to carry out the purposes of this Act, and (2)
informational programs on the importance of and proper use of ade-
quate safety and health equipment.
(b) The Secretary is also authorized to conduct, directly or by
grants or contracts, short-term training of personnel engaged in work
related to his responsibilities under this Act.
(c) The Secretary, in consultation with the Secretary of Health,
Education, and Welfare, shall (1) provide for the establishment and
supervision of programs for the education and training of employers
and employees in the recognition. avoidance, and prevention of unsafe
or unhealthful working conditions in employments covered by this
Act, and (2) consult with and advise employers and employees, and
organizations representing employers and employees as to effective
means of preventing occupational injuries and illnesses.
NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH
SEC. 22. (a) It is the purpose of this section to establish a National Establishment.
Institute for Occupational Safety and Health in the Department of
J-Iealth, Education, and Welfare in order to carry out the policy set
forth in section 2 of this Act aiid to perform the functions of the Sec-
retary of Health, Education, and Welfare under sections 20 and 21 of
this Act.
(b) These is hereby established in the Department of Health,
Education, and.Welfare a National Institute for Occupational Safety
and Health. The Institute shall be headed by a Director who shall be Director,
appointed by the Secretary of Health, Education, and `Welfare, and appointment,
who shall serve for a term of six years unless previously removed by term.
the Secretary of J-Iealth, Education, and `Welfare.
(c) The Institute is authorized to-
(1) develop and establish recommended occupational safety
and health standards; and
(2) perform all functions of the Secretary of Health, Educa-
tion, and `Welfare under sections 20 and 21 of this Act.
(d) Upon his own initiative, or upon the request of the Secretary
or the Secretary of Health, Education, and Welfare, the Director is
authorized (1) to conduct such research and experimental programs
as he determines are necessary for the development of criteria for new
and improved occupational safety and health standards, and (2) after
PAGENO="0075"
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- 24 - December 29, 1970
consideration of the results of such research and experimental pro-
grams make recommendations concerning new or improved occupa-
t.ional safety and health standards. Any occupational safety and health
standard recommeiided pursuant to this section shall immediately be
forwarded to the Secretary of Labor, and to the Secretary of Health,
Education, and Welfare.
(e) In addition to any authority vested in the Institute by other
l)rovisions of this section, the Director, in carrying out the functions of
the Institute, is authorized to-
(1) prescribe, such regulations as he deems necessary governing
the manner in which its functions shall be carried out;
(2) receive money and other property donated, bequeathed,
or devised~ without condition or restriction other than that it bn
used for the purposes of the Institute and to use, sell, or otherwise
dispose of such property for the purpose of carrying out its
functions;
(3) receive (and use, sell, or otherwise dispose of, in accordance
with paragraph (2)), money and other property donated,
bequeathed, or devised to the Institute with a condition or restric-
tion. including a condition that the Institute use other funds of
the Tastitute for the purposes of the gift;
(4) in accordance with the civil service laws, appoint and fix
the compensation of such personnel as may be necessary to carry
out the provisions of this section;
(5) obtain the services of experts and consultants in accord-
ance with the provisions of section 3109 of title 5, United States
Code;
(6) accept and utilize the services of voluntary and noncom-
pensated personnel and reimburse them for travel expenses,
including per diem, as authorized by section 5703 of title 5, United
States Code;
(7) enter into cont.racts, grants or other arrangements, or modi-
fications thereof to carry out the provisions of this section, and
such contracts or modifications thereof may be entered into with-
out performance or other bonds, and without regard to section
3709 of the Revised Statutes,, as amended (41 U.S.C. 5), or any
other provision of law relating to competitive bidding;
(8) make advance, progress, and other payments which the.
I)irector deems necessary under this title without regard to the
provisions of section 3648 of the Revised Statutes, as amended
(31 U.S.C. 529); and
(9) make other necessary expenditures.
(f) The Director shall submit t.o the Secretary of Health, Educa-
tion, and Welfare, to the President, and to the Congress an annual
report of the operations of the Institute under this Act, which shall
include a detailed statement of all private and public funds received
and expended by it., and such recommendations as he deems
appropriate.
GRANTS TO TUE STATES
SEC. 23. (a) The Secretary is authorized, during the fiscal year
ending June 30, 1971, and the two succeeding fiscal years, to make
grants to the States which have designated a State agency under
section 18 to assist them-
(1) in identifying their needs and responsibilities in the area of
occupational safety and health,
(2) in developing State plans under section 18, or
Pub. Law 91-596
84 STAT. 1613
80 Stat. 416.
83 Stat. 190.
Annual report
to HEM,
President, arid
Congress.
PAGENO="0076"
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December 29, 1970 - 25 Pub. Law 91-596
84 STAT. 1614
(3) in developing plans for-
(A) establishing systems for the collection of information
concerning the nature and frequency of occupational injuries
and diseases;
(B) increasing the expertise and enforcement capabilities
of their personnel engaged in occupational safety and health
programs; or
(C) otherwise improving the administration and enforce-
ment of State occupational safety and health laws, including
standards thereunder, consistent with the objectives of this
Act.
~(b) The Secretary is authorized, during the fiscal year ending
.June 30, 1971, and the two succeeding fiscal years, to make grants to
the States for experimental and demonstration projects consistent with
the objectives set forth in subsection (a) of this section.
(c) The Governor of the State shall designate the appropriate State
agency for receipt of any graiit made by the Secretary under this
section.
(d) Any State agency designated by the Governor of the State
desiring a grant under this section shall submit an application there-
for to the Secretary.
(e) The Secretary shall review the applicat.ion, and shall, after
consultation with the Secretary of Health, Education, and Welfare,
approve or reject such application.
(f) The Federal share for each State grant under subsection (a) or
(b) of this section may not exceed 90 per centum of the total cost of
the application. In the event the Federal share for all States under
either such subsection is not the same, the differences among the States
shall be established on the basis of objective criteria.
(g) The Secretary is authorized to make grants to the States to
assist them in administering and enforcing programs for occupational
safety and health contained in State plans approved by the Secretary
piiis~i~tiit to section 18 of this Act. The Federal share for each State
grant under this subsection may not exceed 50 per centuni of the total
cost to the State of such a program. The last sentence of subsection (f)
shall be applicable in determining the Federal share under this
subsection.
(h) Prior to June 30, 1973. the Secretary shall, after consultation Report to
with the Secretary of Health, Education, and Welfare, transmit a President and
report to the President and to the Congress, describing the experience Con@~ess,
under the grant. programs authorized by this section and making any
recommendations he may deem appropriate.
STATISTICS
SEC. 24. (a) In order to further the purposes of this Act, the Secre-
tary, in consultation with the Secretary of Health, Education, and
Welfare, shall develop and maintain an effective program of collec-
tion, compilation, and analysis of occupational safety and health
statistics. Such program may cover all employments whether or not
subject to any other provisions of this Act but shall not cover employ-
ments excluded by section 4 of the Act. The Secretary shall compile
accurate statistics on work injuries and illnesses which shall include
all disabling, serious, or significant. injuries and illnesses, whether or
not. involving loss of time from work, other than minor injuries
requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or
transfer to another job.
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Pub. Law 91..596 - 26 December 29, 1970
84 STAT. 1615
(b) To carry out his duties under subsection (a) of this section, the
Secretary may-
(1) promote, encourage, or directly engage in programs of
studies, information and communication concerning occupational
safety and health statistics;
(2) make grants to States- or political subdivisions thereof in
order to assist them in developing and administering programs
dealing with occupational safety and health statistics; and
(3) arrange, through grants or contracts, for the conduct of
such research and investigations as give promise of furthering the
objectives of this section.
(c) The Federal share for each grant under subsection (b) of this
section may be up to 50 per centum of the State's total cost.
(d). The Secretary may, with the consent of any State or political
subdivision thereof, accept and use the services, facilities, and
employees of the agencies of such State or political subdivision, with
or without reimbursement., in order to assist him in carrying out his
functions under this section.
Reports. (e) On the basis of the records made and kept pursuant to section
8(c) of this Act, employers shall file such reports with the Secretary
as he shall prescribe by regulation, as necessary to carry out his func-
tions under this Act.
(f) Agreements between the Department of Labor and States per-
taining to the collection of occupational safety and health statistics
already in effect on the effective date of this Act shall remain in effect
imtil superseded by grants or contracts made under this Act.
AUDIT5
SEC. 25. (a) Each recipient of a grant under this Act shall keep such
records as the Secretary or the Secretary of Health, Education, and
Welfare shall prescribe, including records which fully disclose the
amount and disposition by such recipient of the proceeds of such grant,
the total cost of the project or undertaking in connection with which
such grant is made or used, and the amount of that portion of the cost
of the project or undertaking supplied by other sources, and such other
records as will facilitate an effective audit.
(b) The Secretary or the Secretary of Health, Education, and Wel-
fare, and the Comptroller General of the TJnited States, or any of their
duly authorized representatives, shall have access for the purpose of
audit and examination to any books, documents, papers, and records of
the recipients of any grant under this Act that are pertinent to any such
grant.
ANNEAL REPORT
SEC. 26. Within one hundred and twenty days following the con-
vening of each regular session of each Congress, the Secretary and the
Secretary of Health, Education, and Welfare shall each prepare and
submit to the President for transmittal to the Congress a report upon
the subject matter of this Act, the progress toward achievement of
the purpose of this Act, the needs and requirements in the field of
occupational safety and health, and any other relevant information.
Such reports shall include information regarding occupational safety
and health standards, and criteria for such standards, developed dur-
ing the preceding year; evaluation of standards and criteri~ previously
developed under this Act, defining areas of emphasis for new
criteria and standards; an evaluation of the degree of observance of
applicable occupational safety and health standards, and a summary
PAGENO="0078"
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December 29, 1970 - 27 - Pub. Law 91-596
84 STAT. 1616
of inspectioa and enforcement activity undertaken; analysis and eval-
uation of research activities for which results have been obtained under
governmental and nongovernmental sponsorship; an analysis of major
occupational diseases; evaluation of available control and measurement
technology for hazards for which standards or criteria have been
developed during the preceding year; description of cooperative efforts
undertaken between Government agencies and other interested parties
in the implementation of this Act during the preceding year; a
progress report on the development of an adequate supply of trained
manpower in the field of occupational safety and health, including
estimates of future needs and the efforts being made by Government
and others to meet those needs; listing of all toxic substances in indus-
ttial usage for which labeling requirements, criteria, or standards
have not yet been established; and such recommendations for addi-
tional legislation as are deemed necessary to protect the safety and
health of the worker and improve the administration of this Act.
NATIONAL COMMISSION ON STATE WORKMEN'S COMPENSATION LAWS
SEC. 27. (a) (1) The Congress hereby finds and declares that-
(A) the vast majority of American workers, and their families,
are dependei\t on workmen's compensation for their basic eco-
nomic security in the event such workers suffer disabling injury
or death in the course of their employment; and that the full pro-
tection of American workers from job-related injury or death
requires an adequate, prompt, and equitable system of workmen's
compensation as well as an effective program of occupational
health and safety regulation; and
(B) in recent years serious questions have been raised concern-
ing the fairness and adequacy of present workmen's compensation
laws in the light of the growth of the economy, the changing
nature of the labor force, increases in medical knowledge, changes
in the hazards associated with various types of employment, new
technology creating new risks to health and safety, and increases
in the general level of wages and the cost of living.
(2) The purpose of this section is to authorize an effective study and
objective evaluation of State workmen's compensation laws in order to
determine if such laws provide an adequate, prompt, and equitable
system of compensation for injury or death arising out of or in the
course of employment.
(b) There is hereby established a National Commission on State Establishment.
Workmen's Compensation Laws.
(c) (1) The Workmen's Compensation Commission shall be com- Membership.
posed of fifteen members to be appointed by the President from among
members of State workmen's compensation boards, representatives of
insurance carriers, business, labor, members of the medical profession
having experience in industrial medicine or in workmen's compensa-
tion cases, educators having special expertise in the field of workmen's
compensation, and representatives of the general public. The Secre-
tary, the Secretary of Commerce, and the Secretary of Health, Educa-
tion, and Welfare shall be ex officio members of the Workmen's
Compensation Commission:
(2) Any vacancy in the Workmen's Compensation Commission
shall not affect its powers.
(3) The President shall designate one of the members to serve as
Chairman and one to serve as Vice Chairman of the Workmen's Com-
pensation Commission.
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Pub, Law 91-596 - 28 - December 29, 1970
84 STAT. 1617
Quorum. (4) Eight members of the \Vorkmen~s Compensation Commission
shall constitute a quorum.
Study. (d) (1) The Workmen~s Compensation Conimission shall undertak~e
a comprehensive study and evaluation of State workmen's compen-
sation laws in order to determine if such laws provide an adequate,
psompt, and equitable system of compensation. Such study and evalua-
tion shall include, without being limited to, the following subjects:
(A) the amount and duration of permanent and temporary disability
benefits and the criteria for determining the maximum limitations
thereon, (B) the amount and duration of medical benefits and provi-
sions insuring adequate medical care and free choice of physician, (C)
the extent of coverage of workers, including exemptions based on num-
bers or type of employment, (1)) standards for determining which
injuries or diseases should be deemed compensable, (E) rehabilitation,
(F) coverage under second or subsequent injury funds, (G) time limits
on filing claims, (H) waiting periods, (I) compulsory or elective cov-
erage, (J) admimstration, (K) legal expenses, (L) the feasibility and
desirability of a uniform system of reporting information concerning
job-related injuries and diseases and the operation of workmen's corn-
pensation laws, (M) the resolution of conflict *of laws, extraterritori-
ality and similar problems arising from claims with multistate aspects,
(N) the extent to which pIi\-ate insurance carriers are excluded from
supplying workmen's compensation coverage and the desirability of
such exclusionary practices, to the extent they are found to exist, (0)
the relationship between workmen's compensation on the one hand,
and old-age, disability, and survivors insurance and other types of
insurance, public or private, on the other hand, (P) methods of imple-
mnenting the recommendations of the Commission.
Report to (2) The Workmen's Compensation Commission shall transmit to
President the President amid to the Congress not later than July 31, 1972, a final
and Congress. report containing a detailed statement of the findings and conclusions
of the Commission, together with such recommendations as it deems
advisable.
Hearings. (e) (1) The Workmemih Compensation Commission or, on the
authorization of the Workmen's Compensation Commission, any sub-
committee or members thereof, may, for the purpose of carrying out
the provisions of this title, hold such hearings, take such testimony,
and sit. and act at such times and places as the Workmen's Compensa-
tion Commission deems advisable. ~ny member authorized by the
Workmen's Compensation Commission may administer oaths or affir-
mnations to witnesses appearing before the Workmen's Compensation
Commission or any subcommittee or members thereof.
(2) Each department, agency, anti instrumentality of the executive
branch of the Government, including independent agencies, is author-
ized and directed to furnish to the Workmen's Compensation Com-
mission, upon request made by the Chairman or Vice Chairman, such
information as the Workmen~s Compensation Commission deems nec-
essaiy to carry out its functions under this section.
(f) Subject to such rules and regulations as may be adopted by the
WTorkrnen's Compensation Commission, the Chairman shall have the
po~ver to-
(1) appoint and fix the compensation of an executive director,
andi such additional staff personnel as he deems necessary, with-
80 Stat. 378. out regard to the provisions of title ~, United States Code, gov-
5 USC 101. ernmg appointments in the competitive service, and without
regard to the provisions of chapter 51 and subchapter III of chap-
5 USC 5101, ter 53 of such title relating to classification anti General Schedule
5331.
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December 29, 1970 - 29 - Pub. Law 91..596
84 STAT. 1618
pay rates, but at rates not in excess of the maximum rate for ~ p. 198-1.
GS-18 of the General Schedule under section 5332 of such title,
and
(2) procure temporary and intermittent services to the same
extent as is authorized by section 3109 of title 5, United States
Code. 80 Stat. 416.
(g) The Workmen's Compensation Commission *is authorized to Contract
enter into contracts with Federal or State agencies, private firms, authorization.
institutions, and individuals for the conduct of research or surveys, the
preparation of reports, and other activities necessary to the discharge
of its duties.
(h) Members of the Workmen's Compensation Commission shall Compensation;
receive compensation for each day they are engaged in the perform- travel ex-
ance of their duties as members of the Workmen's Compensation penses.
Commission at the daily rate prescribed for GS-18 under section 5332
of title 5, United States Code, and shall be entitled to reimbursement
for travel, subsistence, and other necessary expenses incurred by them
in the performance of their duties as members of the Workmen's
Compensation Commission.
(i) There are hereby authorized to be appropriated such sums as Appropriation.
may be necessary to carry out the provisions of this section.
(j) On the ninetieth day after the date of submission of its final Termination.
report to the President, the Workmen's Compensation Commission
shall cease to exist.
ECONOMIC ASSISTANCE TO SMALL BUSINESSES
SEC. 28. (a) Section 7(b) of the Small Business Act, as amended, is 72 Stat. 387;
amended- 83 Stat. 802.
(1) by striking out the period at the end of "paragraph (5)" 15 USC 636.
and inserting in lieu thereof"; and"; and
(2) by adding after paragraph (5) a new paragraph as
follows:
"(6) to make such loans (either directly or in cooperation with
banks or other lending institutions through agreements to participate
on an immediate or deferred basis) as the Administration may
determine to be necessary or appropriate to assist any small business
concern in effecting additions to or alterations in the equipment, facil-
ities, or methods of operation of such business in order to comply with
the applicable standards promulgated pursuant to section 6 of the
Occupational Safety and Health Act of 1970 or standards adopted by a
State pursuant to a plan approved under section 18 of the Occupa-
tional Safety and Health Act of 1970, if the Administration deter-
imnes that such concern is likely to suffer substantial economic injury
without assistance under this paragraph."
(b) The third sentence of section 7(b) of he Small Business Act, as
amended, is amended by striking out "or (5)" after "paragraph (3)"
and inserting a comma followed by "(5) or (6) ".
(c) Section 4(c) (1) of the Small Business Act, as amended, is 80 Stat. 132.
amended by inserting "7(b) (6)," after "7(b) (5),". 15 USC 633.
(d) Loans may also be made or guaranteed for the purposes set
forth in section 7(b) (6) of the Small Business Act, as amended, pur-
suant to the provisidns of section 202 of the Public Works and Eco-
nomic Development Act of 1965, as amended. 79 Stat. 556.
42 USC 3142.
ADDiTIONAL ASSISTANT SECRETARY OF LABOR
SEc. 29. (a) Section 2 of the Act of April 17, 1946 (60 Stat. 91) as
amended (29 U.S.C. 553) is amended by- 75 Stat. 338.
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Pub, Law 91-596 - 30 - December 29, 1970
84 STAT. 1619
(1) striking out "four" in the first sentence of such section and
inserting in lieu thereof "five"; and
(2) adding at the end thereof the following new sentence, "Oi~e
of such Assistant Secretaries shall be an Assistant Secretary of
Labor for Occupational Safety and Health.".
80 Stat. 462. (b) Paragraph (20) of section 5315 of title 5, United States Code, is
amended by striking out "(4)" and inserting in lieu thereof "(5)".
ADDITIONAL PO5ITIONS
SEC. 30. Section 5108 (c) of title 5, United States Code, is amended
by-
(1) striking out the word "and" at the end of paragraph (8);
(2) striking out the period at the end of paragraph (9) and
inserting in lieu thereof a semicolon and the word "and"; and
(3) by adding immediately after paragraph (9) the following
new paragraph:
"(10) (A) the Secretary of Labor, subject to the standards
and procedures prescribed by this chapter, may place an addi-
tional twenty-five positions in the Department of Labor in
GS-16, 17, and 18 for the purposes of carrying out his respon-
sibilities under the Occupational Safety and Health Act
of 1970;
"(B) the Occupational Safety and Health Review Com-
mission, subject to the standards and procedures prescribed
by this chapter, may place ten positions in GS-16, 17, and 18
in carrying out its functions under the Occupational Safety
and Health Act of 1970."
EMERGENCY LOCATOR BEACONS
72 Stat. 775. SEC. 31. Section 601 of the Federal Aviation Act of 1958 is amended
49 USC 1421. by inserting at the end thereof a new subsection as follows:
"EMERGENCY LOCATOR BEACONS
"(d) (1) Except with respect. to aircraft described in paragraph (2)
of this subsection, minimum standards pursuant to this section shall
include a requirement that emergency Iccator beacons shall be
installed-
"(A) on any fixed-wing, powered aircraft for use in air coin-
merce the manufacture of which is completed, or which is
imported into the IJnited States, after one year following the
date of enactment of this subsection; and
"(B) on any fixed-wing, powered aircraft used in air commerce
after three years following such date.
"(2) The provisiops of this subsection shall not apply to jet-
powered aircra.ft; aircraft used in air transportation (other than air
ta.xis a.nd charter aircraft) ; military aircraft; aircraft used solely for
t.raining purposes not involving flights more than twenty miles from
its base; and aircraft used for the aerial application of chemicals."
SEPARABILITY
SEC. 32. If any provision of this Act, or the application of such pro-
vision to any person or circumstance, shall be held invalid, the remain-
der of this Act, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall not
be affected thereby.
75-622 0 - 74 - pt. 3 - 6
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December 29, 1970 31 -* Pub0 Law 91-596
_________________________________ 84 STAT. 1620
APPROPRIATIONS
SEC. 33. There ire authorized to be appropriated to carry out this
Act for each fiscal veai such sums as the Congress shall deem necessary.
EFFECTIVE DATE
SEc. 34. This Act. shall take effect one hundred and twenty days
after the date of its enactment.
Approved December~2.9, 1970.
LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 91-1291 accompanying H.R. 16785 (Comm. on
Eduoation and Labor) and No. 91-1765 (Comm. of
Conference)
SENATE REPORT No. 91-1282 (Comm. on Labor and Public Welfare).
CONGRESSIONAL RECORD, Vol. 116 (1970):
Oct. 13, Nov. 16, 17, considered and passed Senate.
Nov. 23, 24, considered and passed House, amended, in lieu
of H.R. 16785.
Dec. 16, Senate agreed to conference report.
Dec. 17, House agreed to conference report.
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EXECUTIVE ORDER 11612-0 C C U P A T 10 N AL
SAFETY AND HEALTH PROGRAMS FOR FED~
ERAL EMPLOYEES
SOURCE: Executive Order 11612 appears at 36 F.R. 13891,
July 28, 1971
The Occupational Safety and Health Act of 1970, 84 Stat. 1590,
authorizes the development and enforcement of standards to assure
safe and healthful working conditions for employees in the private
sector. Section 19 of that Act makes each F~ederal agency head respon-
sible for establishing and maintaining an effective and comprehensive
occupational safety and health program which is consistent with the
standards promulgated by the Secretary of Labor for businesses af-
fecting interstate commerce.
Section 7~02 of Title 5, United States Code, authorizes the President
to establish by Executive Order `a safety council composed of repre-
sentatives of Federal agencies and of labor organizations representing
employees to serve as an advisory body to the Secretary of Labor in
carrying out a Federal safety program.
As the Nation's largest employer, the Federal Government' has a
special obligation to set an example for safe and healthful employ-
ment. It is appropriate that the Federal Government strengthen its
efforts to assure safe and healthful working conditions for its own
employees..
NOW, THEREFORE, by virtue of the authority vested in me by
.section 7902. of Title 5 of the. United States Code, and as President
of the' United States, it is hereby ordered as follows:
ESTABLISHMENT or: OCCuPATIONAL SAFETY AND HEAIIIH PROGRAMS IN
* . FEDERAL DEPARTMENTS AND AGENCIES
SECTION 1. The head of each Federal department and agency shall
* establish an occupational safety and health program (hereinafter re-
ferred to as a safety program) in compliance with the requirements
of section' 7902 of Title 5 of the United States Code and section' 19(a)
of the Occupational Safety and Health Act of 1970 (which Act shall
hereinafter be referred to as the Safety Act). The programs shall be
consistent with the standards prescribed by section 6 of the Safety Act.
In providing safety programs for Federal employees, the head of each
Federal department and agency shall- `
(1). Designate or appoint a qualified' official who shall be re-
sponsible' for the management of the safety program within his
agency.
(2) Establish (A) a safety policy; (B) an organization and a
set of procedures, providing for appropriate consultation with
employees, that will permit that policy to be implemented effec-
* ` (765)
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tively; (C) a safety management information system; (D) goals
and objectives for reducing and `ehmrnatting employee injuries
and occupational illnesses; (E) periodic inspections of work-
places to ensure compliance with standards; (F) plans and pro-
cedures for evaluating the program's effectiveness; and (G) pri-
orities with respect to the factors which cause occupational injury
and illness so that appropriate countermeasures can be developed.
(3) Correct conditions that do not meet .safety and health
standards.
(4). Submit to the Secretary of Labor by April 1 of each year
a report containing (A) the status of his agency's safety program
in reducing injuries and occupational illnesses to personnel during
the proceding calendar year as related to the goals and objectives
established for that year; (B) goals and objectives for the current
year; (C) a plan for achieving those goals and `objectives; (D)
any report required under section 7902(e) (2) of Title 5 of the
United States Code; and (E) .such other information as may be
requested by the Secretary.
(5) Cooperate with and assist Ihe Secretary `of `Labor `in `the
performance of the Secretary's duties under section 7002 of Title
5 of the United `States Code and `section 19 of the Safety Act.
DuTIEs OF `THE `SECRETARY OF LABOR
SEC. .2. (a) ~l'he `Secretary of' Labor (hereinafter referred to as the
Secretary) ,~or his designeee' in' the Department of Labor, shall-
(1) By regulation, provide guidance to the heads of Federal
departments and agencies to assist them in fulfilling their occupa-
tiônal safety and health responsibilities;
(2) evaluate the safety programs of Federal `departments and
agencies annually, and, with the consent of the head of the affected
department or agency, the. Secretary may conduct at headquarters
or in the field such investigations as he deems necessary;
(3) develop a safety management information systemto accom-
Modate the data requirements of `the program;
(4) subn~iit to the President by June 1 of each year an analysis
of the information submitted to him by the heads of the Federal
departments and agencies. This analysis shall include the Secre-
tary's evaluation of each agency's safety program `and shall' con-
tain his recommendations for improving safety programs
throughout the Federal service.
(b) By agreement, the Secretary may, to the `extent `permitted by
law,extend the safety program provided for under this Order to' Fed-
eral employees not covered under section 7902 of Title 5 of the United
States Code and the Safety Act.
FEDERAL SAFETY ADVISORY COuNCIL
~O."3. (a) A Federal Advisory `Council on Occuptional `Safety and
Health shall be established to advise the Secretary in carrying out. his
responsibilities under this Order. This Council shall consist of 15 mem-
be'rs appointed by the Secretary and shall include representatives of
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767
Federal departments and agencies, and of labor organizations repre-
senting employees. At least three members shall be representatives of
such labor organizations. The members shall serve for three year
terms, except that, for the first Council, one third will serve for one
year and one third for two years.
(b) The Secretary, or his designee, shall serve as the Chairman of
the Council, and shall prescribe such rules for the conduct of its busi-
ness as he deems necessary and appropriate.
(c) The Council shall meet at the call of its Chairman. It may estab-
lish such subcommittees as it finds necessary.
(d) The Council may establish or continue field affiliates in such
manner and to the extent it deems advisable to support thepurposes of
this Order.
ADMINISTrtATIVE AND BUDGETARY ARRANGEMENTS
SEC. 4. The Secretary shall make available necessary office space and
furnish the Council necessary equipment, supplies, and staff services.
Err1~oT ON OTHER POWERS AND DUTIES
SEC. 5. Nothing in this Order shall be construed to impair or alter
the powers and duti.es of the Secretary or the heads of other Federal
departments and agencies pursuant to section 7902 of Title 5 of the
United States Code, section 19 of the Safety Act, or any other provi-
~sion of law.
TERMINATION OF EXISTING ORDER
SEC. 6. Executive Order No. 10990 of February 2, 1962, is hereby
superseded.
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LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT
Act of Mar. 4, 1927, as amended, 33 u.s.c. 901 et seq.; 42 u.s.c. 1651;
43 U.S.a. 1333; 5 u.s.c. 150k; 36 D.C.~ code 501
Summary and Disposition
The Longshoremen's and Harbor Workers' compensation Act pro-
vides workers' compensation benefits for certain private employments
subject to Federal jurisdiction.
PERSONS AND EMPLOYMENTS COVERED
The law covers substantially all maritime employment in whole or
in part on the navigable waters of the United States (including any
adjoining pier, wharf, drydock, terminal, building way, marine rail-
way, or other adjoining area customarily used by an employer in load-
ing, unloading, repairing, or building a vessel), except the master or
members of the crew of a vessel. The principal employments covered
are longshoremen and ship repairmen. The law has been extendedto
other employments, including all private employment in the District
of columbia and employment outside the United States in the service
of contractors with the United States at military, air, or naval bases
or on public works, including employment on certain contracts made
under the Mutual Security Act of 1954, as amended. Also certain em-
ployment on the Outer continental Shelf lands and employment as
post exchanges and other nonappropriated fund instrumentalities of
the Armed Forces.
INJURIES AND DISEASES COVERED
The: law provides workers' compensation benefits for accidental
injury or death and diseases arising out of or occurring in the course of
the employment.
AMOUNT OF BENEFITS
compensation for disability and death is based on the average
weekly wage of the injured worker. Maximum benefits may not ex-
ceed a specified percentage of the national average weekly wage. The
percentage increases from 125 prior to September 30, 1973, to 200 be-
ginning October 1, 1975. The minimum is 50% of the national average
weekly wages or the employees' actual weekly wage, whichever is less.
(769)
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TEMPORARY TOTAL DISABILITY
The compensation rate is two-thirds of the employee's average
weekly wage. There is a 3-day waiting period, but if the disability
lasts more than 14 days, compensation is paid for the waiting period.
Benefits are paid during the period of such disability.
PERMANENT PARTIAL DISABILITY
Compensation for permanent partial disability is paid under a stat-
utory schedule for the loss or loss of use of specified parts of the body
or body functions, and for disfigurement, or upon the basis of two-
thirds of a loss in wage earning capacity.
PERMANE~TT TOTAL DISABILITY
Compensation is payable for life at two-thirds of the employee's
weekly wage.
`DEATH
Burial expenses are provided up to a maximum of $1,000. Persons
eligible for death compensation include a widow, children under 18
years, and those Over 18 if incapable of self-support or if they a~e stu-
dents, and dependent parents, brothers and sisters, grandparents, and
grandchildren. The aggregate award to all beneficiaries may not ex-
ceed two-thirds of the average weekly wage.
Compensation to a widow is payable for life, or until remarriage.
Upon remarriage, the widow receives 2 years' compensation.
MEDXCAL TREATMENT
All necessary medical care is authorized for the effects of an injury.
The employer is required to provide necessary and reasonable medical
care and treatment. The employee has an initial free choice of
`physicians. There is no limit on the cost or period of treatment.
VOCATIONAL REHABILITATION
Provision is made for the furnishing of vocational rehabilitation
through appropriate State agencies and for the payment of not to
exceed $25 per week for maintenance while undergoing such voca-
tional training.
SECOND INJURIES
The law sets up a special fund for payment of compensation in' cer-
tain cases in which the employee suffers a permanent partial disability
which, combined with a previous disability, causes permanent total
disability. This fund is also available for payment of benefits in cer-
tan cases in which payments are in default by reason of the insolvency
of the employer and his insurance carrier.
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ADMINISTRATION
This law is administered by the Office of Worker's Compensation
Programs of the U.S. Department of Labor, through Deputy Com-
missioners appointed to 16 Compensation Districts. Disputed claims
are adjudicated by administrative law judges.
APPEALS
The decision of an administrative law judge is subject to review by
the Benefits Review Board, U.S. Department of Labor.
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LONGSHOREMEN'S AND HARBOR WORKERS' `COMPENSA-
TION ACT AMENDMENTS OF 197212'
An Act To provide compensation for disability or death resulting from injury
to employees in certaIn maritime employment, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SHORT TITLE
SEC. 1. This Act may be cited as "Longshoremen's and Harbor
Workers' Compensation Act."
DEFINITIONS
SEC. 2. When used in this Act-
(1) The term "person" means individual, partnership, corporation,
or association.
(2) The term "injury" means accidental injury or death arising
out of and in the course of employment, and such occupational disease
or infection as arises naturally out of such employment or as natu-
rally or unavoidably results from such accid~ntal injury, and includes
an injury caused by the willful act of a third person directed against
an employee because of his employment.
(3) The term "employee" means any person engaged in maritime
employment, including any longshoreman or' other person engaged
in longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker, but such term does not in-
clude a master or member of a crew of any vessel, or any person
engaged by the master to load or unload or repair any small vessel
under eighteen tons net.
(4) The term "employer" means an employer any of whose em-
ployees are employed in maritime employment, in whole or in part,
upon the navigable waters of the United States (including any ad-
joining pier, wharf, dry dock, terminal, building way, marine rail-
way, or other adjoining area customarily used by an employer in load-
ing, unloading, repairing, or building a vessel).
(5) The term "carrier" means any person or fund authorized under
section 32 to insure this Act and includes self-insurers.
(6) The term "Secretary" means the Secretary of Labor.
(7) The term "deputy commissioner" means the deputy commis-
sioner having jurisdiction in respect of an injury or death.
(8) The term "State" includes a Territory and the District of
Columbia.
1 Includes 1972 amendments made by P.L. 92-576 printed in italic.
2 The amendments (except section 19(d) of the Act) *are effective thirty days after enact-
ment (12 :01 a.m., November 26, 1972).
(1)
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773
2
(9) The term "United States" when used in a geographical sense
means the several States and Territories and the District of Columbia,
including the territorial waters thereof.
(10) "Disability" means incapacity because of injury to earn the
wages which the employee was receiving at the time of injury in
the same or any other employment.
(11) "Death" as a basis for a right to compensation means only
death resulting from an injury.
(12) "Compensation" means the money allowance payable to an
employee or to his dependents as provided for in this Act, and includes
funeral benefits provided therein.
(13) "Wages" means the money rate at which the service rendered
is recompensed under the contract of hiring in force at the time of
the injury, including the reasonable value of board, rent, housing,
lodging or similar advantage received from the employer, and gra-
tuities received in the course of employment from ~others than the
employer.
(14) "Child" shall include a posthumous child, a child legally
adopted prior to the injury of the employee, a child in relation to
whom the deceased employee stood in loco parentis for at least one
year prior to the time of injury, and a stepchild or acknowledged
illegitimate child dependent upon the deceased, but does not include
married children unless wholly dependent on him. "Grandchild"
means a child as above defined of a child as above defined. "Brother"
and "sister" include stepbrothers and stepsisters, half brothers and
half sisters, and brothers and sisters by adoption, but does not include
married brothers nor married sisters unless wholly dependent on the
employee. "Child," "grandchild," "brother" and "sister" include only
a person who is under eighteen years of age, or who, though eighteen
years of age or over, is (1) wholly dependent upon the employee and
incapable of self-support by reason of mental or physical disability,
or (2) a student as defined in paragraph (19) of this section.
(15) The term "parent" includes step-parents and parents by adop-
tion, parents-in-law, and any person who for more than three years
prior to the deaih of the deceased employee stood in the place of a
parent to him, if dependent on the injured employee.
(16) The terms "widow or widower" includes only the decedent's
wife or husband living with or dependent for support upon him or
her at the time of his or her death; or living apart for justifiable
cause or by reason of his or her desertion at such time.
(17) The term "adoption" or "adopted" means legal adoption prior
to the time of the injury.
(18) The term "student" meane a person regularly pursuing a full-
time course of study or training at an institution which is-
(A) a sdhool or college or university operated or directly sup-
ported by the United States, or by any State or local government
or political subdivision thereof,
(B) a school or college or university which has beeen accred-
ited by a State or by a State recognized or nationally recognized
accrediting agency or body,
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3
(C) a school or college or university not so accredited but whose
credits are accepted, on transfer, by not less than three institu-
tions which are so accredited, for credit on the same basis as if
transferred from an institution so accredited, or
(D) an additional type of educational or training institution
as defined by the Secretary,
but not after he reaches the age of twenty-three or has completed four
years of education beyond the high school level, except that, where his
twenty-third birthday occurs during a semester or other enrollment
period, he shall continue to be considered a student until the end of
such semester or other enrollment period. A dhild shall not be deemed
to have ceased to be a student during any interim between school years
if the interim does not exceed five mont/is and if he shows to the satis-
faction of the Secretary that he has a bona fide intention of continuing
to pursue a full-time course of educatkrt or training during the semes-
ter or other enrollment period immediately following the interim or
during periods of reasonable duration during which, in the judgment
of the Secretary, he is prevented by factors beyond his control fr&m~
pursuing his education. A child shall not be deemed to be a student
under this Act during a period of service in the Armed Forces of the
United States.
(19) The term "national average weekly wage" means the national
average weekly earnings of production or nonsuperrisory workers on
private nonagricultural payrolls.
(20) The term "Board" shall mean the Benefits Review Board.
(21) The term "vessel" means any vessel upon whidh or in connection
with which any person entitled to benefits under this Act suffers in-
jury or death arising out of or in the course of his employment, and
said vessel's owner, owner pro hac vice, agent, operator, charter or
bare boat charterer, master, officer, or crew member.
(22) The singular includes the plural and the masculine jncludes
the feminine and neuter.
COVERAGE
SEC. 3. (a) Composition shall be payable under this Act in respect
of disability or death of an employee, but only if the disability or
death results from an injury occurring upon the navigable waters of
the United States (including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other adjoining area cus-
tomarily used by an employer in loading, unloading, repairing, or
building a vessel). No compensation shall be payable in respect of the
disability or death of-
(1) A master or member of a crew of any vessel, or any person en-
gaged by the master to load or unload or repair any small vessel under
eighteen tons net; or
(2) An officer or employee of the United States or any agency there-
of or of any State or foreign government, or of any political subdivi-
sion thereof.
(b) No compensation shall be payable if the injury was occasioned
solely by the intoxication of the employee or by the willful intention
of the~ employee to injure or kill himseif or another.
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4
LIABILITY FOR COMPENSATION
SEC. 4. (a) Every employer shall be liable for and shall secure the
payment to his employees of the compensation payable under sections
7, 8, and 9. In the case of an employer who is a subcontractor, the con-
tractor shall be liable for and shall secure the payment of such com-
pensation to the employees of the subcontractor unless the subcontrac-
tor has secured such payment.
(b) Compensation shall be payable irrespective of fault as a cause
for the injury.
EXCLUSIVENESS OF REMEDY AND THIRD-PARTY LIABILITY
SEC. 5. (a) The liability of an employer prescribed in section 4 shall
be exclusive and in place of all other liability of such employer to the
employee, his legal representative, husband or wife, parents, depend-
ents, next of kin, and anyone otherwise entitled to recover damages
from such employer at law or in admiralty on account of such injury
or death, except that if an employer fails to secure payment of com-
pensation as required by this Act, an injured employee, or his legal
representative in case death results from the injury, may elect to claim
compensation under the Act, or to maintain an action at law or in ad-
miralty for damages on account of such injury or death. In such
action the defendant may not plead as a defense that the injury was
caused by the negligence of a fellow servant, or that the employee
assumed the risk of his employment, or that the injury was due to
the contributory negligence of the employee.
(b) In the event of injury to a person covered under this Act caused
by the negligence of a vessel, then such person, or anyone otherwise
entitled to recover damages by reason thereof, may bring an action
against such vessel as a third party in accordance with the provisioiw
of section 83 of this Act, and the employer shall not be liable to the
vessel for such damages directly or indirectly and any agreements or
warranties to the contrary shall be void. If such person was employed
by the vessel to provide stevedoring services, no such action shall be
perimited if the injury was caused by the negligence of persons en-
gaged in providing stevedoring services to the vessel. If such person
was employed by the vessel to provide ship building or repair services,
no such action shall be permitted if the injury was caused by the negli-
gence of persons engaged in providing ship building or repair services
to the vessel. The liability of the vessel under this subsection shall not
be based upon the warranty of seaworthiness or a breach thereof at the
time the injury occurred. The remedy provided in this subsection shall
be exclwiive of all other remedies against the vessel except remedies
available under this Act.
TIME FOR COMMENCEMENT OF COMPENSATION
MAXIMUM AND MINIMUM COMPENSATION
SEC. 6. (a) No compensation shall be allowed for the first three days
of the disability, except the benefits provided for in section 7: Pro-
vided, however, That in case the injury results in disability of more
than fourteen days, the compensation shall be allowed from the date
of the disability.
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(b) (1) Except as provided in subsection (c), compensation for dis-
ability shall not exceed the following percentages of the applicable
national average wee/ely wage as determined by the Secretary under
paragraph (3):
(A) 125 per centum or $167, whichever is greater, during the
period ending September 30, 1973.
(B) 150 per centuni during the period beginning October 1,
1973, and ending September 30, 1974.
(C) 175 per centuni during the period beginning October 1,
1974, and ending September 30, 1975.
(D) 200 per centum beginning October 1, 1975.
(2) Compensation for total disability shall not be less than 50 per
centum of the applicable national average wee/ely wage determined by
the Secretary under paragraph (3), except that if the employee's
average weekly wages as computed under section 10 are less than 50 per
centum of such national average weekly wage, he shall receive his
average weekly wages as compensation for total disability.
(3) As soon as practicable after June 30 of each year, and in any
event prior to October 1 of such year, the Secretary shall determine
the national average weekly wage for the three consecutive calendar
quarters ending June 30. Such determination shall be the applicable
national average weekly wage for the period beginning with October 1
of that year and ending with September30 of the next year. The initial
determination under this paragraph shall be made as soon as practica-
ble after the enactment of this subsection.
(c) The maximum rate of compensation for a nonappropriated
fund instrumentality employee shall be equal to 662/3 per centum of
the maximum rate of basic pay established for a Federal employee in
grade GS-12 by section 5332 of title 5, United States Code, and the
minimum rate of compensation for such an employee shall be equal to
662/3 per centum of the minimum rate of basic pay established for a
Federal employee in grade GS-2 by such section.
(d) Determinations under this subsection with respect to a period
shall apply to employees or survivors currently receiving compensa-
tion for permanent total disability or death benefits during such
period, as well as those newly awarded compensation during such
period.
MEDICAL SERVICES AND SUPPLIES
SEC. 7. (a) The employer shall furnish such medical, surgical, and
other attendance or treatment, nurse and hospital service, medicine,
crutches, and apparatus, for such period as the nature of the injury or
the process of recovery may require.
(b) The employee shall have the right to choose an attending physi-
cian authorized by the Secretary to provide medical care :u~der this
Act as hereinafter provided. If, due to the nature of the injury, the
employee is unable to select his physician and the nature of the injury
requires immediate medical treatment and care, the employer shall
select a physician for him. The Secretary shall actively supervise the
medical care rendered to injured employees, shall require periodic re-
pOrt8 as to the medical care being rendered to injured eniployeee, shall
have authority to determine the necessity, character, and sufficiency of
any medical aid furnished or to be furnished, and may, on ha own ii-
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tiative or at the request of the employer, order a change of physicians
or hospitals when in his judgment such change is desirable or necessary
in the interest of the employee. Change of physicians at the request of
employees shall be permitted in accordance with regulations of the
Secretary.
(c) The Secretary may designate the physicians who are authorized
to render medical care under the Act. The names of physicians so
designated in the community shall be made available to employees
through posting or in such other form as the Secretary may prescribe.
(d) An employee shall not be entitled to recover any amount ex-
pended by him for medical or other treatment or services unless he shall
have requested the employer to furnish such treatment or services, or to
authorize provision of medical or surgical services by the physician
selected by the employee, and the employer shall have refused or
neglected to do so, or unless the nature of the injury required such
treatment and services and the employer or his superintendent or fore-
man having knowledge of such injury shall have neglected to provide
or authorize the same; nor shall any claim for medical or surgical
treatment be valid and enforceable, as against such employer, unless
within ten days following the first treatment the physician giving such
treatment furnish to the employer and the Secretary a report of such
injury and treatment, on a form prescribed by the Secretary. The Sec-
retary may, however, excuse the failure to furnish such report within
ten days when he finds it to be in the interest of justice to do so, and
he may, upon application by a party in interest, make an award for the
reasonable value of such medical or surgical treatment so obtained by
the employee. If at any time the employee unreasonably refuses to
submit to medical or surgical treatment, or to an examination by a
physician selected by the employer, the Secretary may, by order, sus-
pend the payment of further compensation during such time as such
refusal continues, and no compensation shall be ~paid at any time dur-
ing the period of such suspension, unless the circumstai~ces justified
the refusal.
(e) In the event that medical questions are raised in any case, th~
Secretary shall have the power to cause the employee to be examined
by a physician employed or selected by the Secretary and to obtain
from such physician a report containing his estimate of the employee's
physical impairment and such other information as may be appro-
priate. Any party who is dissatisfied with such report may request a
review or reexamination of the employee by one or more different phy-
sicians employed or selected by the Secretary. The Secretary shall
order such review or reexamination unless he finds that it is clearly
unwarranted. Such review or reexamination shall be completed within
two weeks from the date ordered unless the Secretary finds that because
of extraordinary circumstances a longer period is required. The Secre-
tary shall have the power in his discretion to charge the cost of exam-
ination or review under this subsection to the employer, if he is a self-
insurer, or to the insurance company which is carrying the risk, in
appropriate cases, or to the special fund in section 44.
(f) An employee shall submit to a physical examination under sub-
section (e) at such place as the Secretary may require. The placer or
places shall be designated by the Secretary and shall be reasonably
PAGENO="0096"
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convenient for the employee. No physician selected by the employer,
carrier, or employee shall be present at or participate in any manner
in such examination, nor shall conclusions of such physicians as to the
nature or extent of impairment or the cause of impairment be avail-
able to the examining physician unless otherwise ordered, for good
cause, by the Secretary. Such employer or carrier shall, upon request,
be entitled to have the employee examined immediately thereafter and
upon the same premises by a qualified physician or physicians in the
presence of such physician as the employee may select, if any. Pro-
ceedings shall be suspended and no compensation shall be payable for
any period during which the employee may refuse to submit to
examination.
(g) All fees and other charges for medical examinations, treatment
or service shall be limited to such charges as prevail in the community
for such treatment, and shall be subject to regulation by the Secre~zry.
The Secretary shall issue regulations limiting the nature and extent of
medical expenses chargeable against the employer without authori3a-
tion by the employer or the Secretary.
(h) The liability of an employer for medical treatment as herein
provided shall not be affected by the fact that his employee was injured
through the fault or negligence of a third party not in the same em-
ploy, or that suit has been brought against such third party. The em-
ployer shall, however, have a cause of action against such third party
to recover any amounts paid by him for such medical treatment in like
manner as provided in section 33(b) of thisAct.
(i) Unless the parties to the claim agree, the Secretary shall not
employ or select any physician for the purpose of making examina-
tions or reviews under subsection (e) of this section who, during such
employment, or during the period of two years prior to such employ-
ment, has been employed by, or accepted or participated in any fee
relating to a workmen's compensation claim from any insurance car-
rier or any self-insurer.
COMPENSATION FOR DISABILITY
SEC. 8. Compensation for disability shall be paid to the employee as
follows:
(a) Permanent total disability: In case of total disability adjudged
to be permanent 662/3 per centum of the average weekly wages shall be
paid to the employee during the continuance of such total disability.
Loss of both hands, or both arms, or both feet, or both legs, or both
eyes, or of any two thereof shall, in the absence of conclusive proof
to the contrary, constitute permanent total disability. In all other cases
permanent total disability shall be determined in accordance with the
facts.
(b) Temporary total disability: In case of disability total in charac-
ter but temporary in quality 662/3 per centum of the average weekly
wages shall be paid to the employee during the continuance thereof.
(c) Permanent partial disability: In case of disability partial in
character but permanent in quality the compensation shall be 66% per
centum of the average weekly wages, which shall be in addition to
compensation for temporary total disability or temporary partial dis-
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ability paid in accordance with subdivision (b) or subdivision (e)
of this section respectively and shall be paid to the employee, as
follows:
(1) Arm lost, three hundred and twelve weeks' compensation.
(2) Leg lost, two hundred and eighty-eight weeks' compensation.
(3) Hand lost, two hundred and forty-four weeks' compensation.
(4) Foot lost, two hundred and five weeks' compensation.
(5) Eye lost, one hundred and sixty weeks' compensation.
(6) Thumb lost, seventy-five weeks' compensation.
(7) First finger lost, forty-six weeks' compensation.
(8) Great toe lost, thirty-eight weeks' compensation.
(9) Second finger lost, thirty weeks' compensation.
(10) Third finger lost, twenty-five weeks' compensation.
(11) Toe other than great toe lost, sixteen weeks' compensation.
(12) Fourth finger lost, fifteen weeks' compensation.
(13) Loss of hearing: Compensation for loss of hearing of one ear,
fifty-two weeks. Compensation for loss of hearing of both ears, two
hundred weeks.
(14) Phalanges: Compensation for loss of more than one phalange
of a digit shall be the same as for loss of the entire digit. Compensa-
tion for loss of the first phalange shall be one-half of the compensation
or loss of the entire digit.
(15) Amputated arm or leg: Compensation for an arm or a leg, if
amputated at or above the elbow or the knee, shall be the same as for
a loss of the arm or leg; but, if amputated between the elbow and the
wrist or the knee and the ankle, shall be the same as for loss of a hand
or foot.
(16) Binocular vision or per centum of vision: Compensation for
loss of binocular vision or for 80 per centum or more of the vision of
an eye shall be the same as for loss of the eye.
(17) Two or more digits: Compensation for loss of two or more
digits or one or more phalanges of two or more digits, of a hand or
foot may be proportioned to the loss of use of the hand or foot occa-
sioned thereby, but shall not exceed the compensation for loss of a
hand or foot.
(18) Total loss of use: Compensation for permanent total loss of
use of a member shall he the same as for loss of the member.
(19) Partial loss or partial loss of use: Compensation for permanent
partial loss or loss of use of a member may be for proportionate loss
or loss of use of the member.
(20) Disfigurement: Proper and equitable compensation not to ex-
ceed $8,500 shall be awarded for serious disfigurement of the face,
head, or neck or of other normally exposed areas likely to handicap the
employee in securing or maintaining employment.
(21) Other cases: In all* other cases in this class of disability the
compensation shall be 66% per centum of the difference between his
average weekly wages and his wage-earning capacity thereafter in the
same employment or otherwise, payable during the continuance of
such partial disability, but subject to reconsideration of the degree of
such impairment by the deputy commissioner on his own motion or
upon application of any party in interest.
(22) In any case in which there shall be a loss of, or loss of use of
more than one member or parts of more than one member set forth in
Th-623 0 - 74 - pt. 3 - 7
PAGENO="0098"
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9
paragraphs (1) to (19) of this subdivision, not amounting to perma-
nent total disability, the award of compensation shall be for the loss
of, or loss of use of, each such member or part thereof, which awards
shall run consecutively, except that where the injury affects only two
or more digits of the same hand or foot, paragraph (17) of this sub-
division shall apply.
(d) (1) If an employee who is receiving compensation for perma-
nent partial disability pursuant to section 8(c) (1)- (20) dies from
causes other than the injury, the total amount of the award unpaid at
the time of death shall be payable to or for the benefit of his survivors,
as follows:
(A) if the employee is survived only by a widow or widower,
such unpaid amount of the award shall be payable to such widow
or wzdower,
(B) if the employee is survived only by a child or children,
such unpaid amount of the award shall be paid to such child or
children in equal shares,
(C) if the employee is survived by a widow or widower and a
child or children, such unpaid amount of the award shall be pay-
able to such survivors in equal shares,
(D) if there be no widow or widower and no svrviving child or
children., such unpaid amount of the award shall be paid to the
survivors specified in section 9(d) (other than a wife, husband, or
child); and the amount to be paid each such survivor shall be
detei4nined by multiplying such unpaid amount of the award by
the appropriate percentage specified in section 9(d), but if the
aggregate amount to which all such survivors are entitled, as so
determined, is less than such unpaid amount of the award, the ex-
cess amount shall be divided among such survivors pro rata ac-
cording to the amount otherwise payable to each under this
subparagraph.
(2) Notwithetanding any other limitation in section 9, the total
amount of any award for permanent partial disability pursuant to sec-
tion 8(c) (1)-(20) unpaid at time of death shall be payable in full in
the appropriate distribution.
(3) If an employee who was receiving compensation for permanent
partial disability pursuant to section 8(c) (21) dies from causes other
than the injury, his survivors shall receive death benefits as provided
in section 9(b)-(g), except that the percentage figures ther~in shall
be applied to the weekly compensation payable to the employee at
the time of his death multiplied by 1.5, rather than to his average
weekly wages.
(4) An award for disability may be made after the death of the
injured employee. Except where compensation is payable under section
8(c) (21), if there be no survivors as prescribed in this section, then the
compensation payable under the subsection shall be paid to the special
fund established under section44(a) of this Act.
(e) Temporary partial disability: In case of temporary partial
disability resulting in decrease of earning capacity the compensation
shall be two-thirds of the difference between the injured employee's
average weekly wages before the injury and his wage-earning capac-
ity after the injury in the same or another employment, to be paid
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10
during the continuance of such disability, but shall not be paid for
a period exceeding five years.
(f) Injury increasing disability: (1) In any case in which an em-
ployee having an existing permanent partial disability suffers injury,
the employer shall provide compensation for such disability as is found
to be attributable to that injury based upon the average weekly wages
of the employee at the time of the injury. If following an injury falling
within the provisions of section 8(c) (1)- (920), the e)irtployee is totally
and permanently disabled, and the disability is found not to be due
solely to that injury, the employer shall provide compensation for the
applicable prescribed period of weeks provided for in that section
for the subsequent injury, or for one hundred and four weeks, which-
ever is the greater. In all other cases of total permanent disability or
of death, found not to be due solely to that injury, of an employee hav-
ing an existing permanent partial disability, the employer shall pro-
vide in addition to compensation under paragraphs (b) and (e) of
this section, compensation payments or death benefits for one hundred
and four weeks only. If following an injury falling within the provi-
sions of 8(c) (1)-(~2O), the employee has a permanent partial disa-
bility and the disability is found not to be due solely to that injury,
and such disability is ~naterially and substantially greater than that
which would have resulted from the subsequent injury alone, the em-
ployer shall provide compensation for the applicable period of weeks
provided for in that section for the subsequent injury, or for one
hundred and four weeks, whichever is the greater.
In all other cases in which the employee has a permanent partial
disability, found not to be due solely to that injury, and such disability
is materially and substantially greater than that which would have re-
sulted from the subsequent injury alone, the employer shall provide
in addition to compensation under paragraphs (b) and (e) of this
section, compensation for one hundred and four weeks only.
(ed) After cessation of the payments for the period of weeks pro-
vided for herein, the employee or his survivor entitled to benefits shall
be paid the remainder of the compensation that would be due out of the
special fund established in section 44.
(g) Maintenance for employees undergoing vocational rehabilita-
tion: An employee who as a result of injury is or may be expected to
be totally or partially incapacitated for a remunerative occupation
and who, under the direction of the Secretary as. provided by section
39(c) of this Act, is being rendered fit to engage in a remunerative oc-
cupation, shall receive additional compensation necessary for his main-
tenance, but such additional compensation shall not exceed $25 a week.
The expense shall be paid out of the special fund established in sec-
tion 44.
(h) The wage-earning capacity of an injured employee in cases of
partial disability under subdivisions (c) (21) of this. section or under
subdivision (e) of this section shall be determined by his actual earn-
ings if such actual earnings fairly and reasonably represent his wage-
earning capacity: Provided, however, That if the employee has no
actual earnings or his actual earnings do not fairly and reasonably
represent his wage-earning capacity, the deputy commissioner may,
in the interest of justice, fix such wage-earning capacity as shall be
reasonable, having due regard to the nature of his injury, the degree
PAGENO="0100"
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1~1
of physical impairment, his usual employment, and any other factors
or circumstances in the case which may affect his capacity to earn
wages in his disabled condition, including the effect of disability as it
may naturally extend into the future.
(i) (A) Whenever the deputy commissioner determines that it is
for the best interests of an injured employee entitled to compensation,
he may approve agreed settlements of the interested parties, discharg-
ing the liability of the employer for such compensation, notwithstand-
ing the provisions of section 15(b) and section 16 of this Act: Pro-
vided, That if the employee should die from causes other than the
injury after the deputy commissioner has approved an agreed settle-
ment as provided for herein, the sum so approved shall be payable, in
the manner prescribed in this subsection, to and for the benefit of the
persons enumerated in subsection, (d) of this section.
(B) Whenever the Secretary determines that it is for the best inter-
ests of the injured employee entitled to medical benefits, he may ap-
prove agreed settlements of the interested parties, discharging the li-
ability of the employer for such medical benefits, notwithstanding the
provisioms of section 16 of this Act: Provided, That if the employee
should die from causes other than the injury after the Secretary has
approved an agreed settlement as provided for herein, the sum so ap-
proved shall be payable, in the manner prescribed in this subdivision,
to and for the benefit of the persons enumerated in subdivision (d) of
this section.
COMPENSATION FOR DEATh
SEC. 9. If the injury causes death, or if the employee who su~taine
permanent total disability due to the injury thereafter dies from cawses
other than the injury, the compensation shall be known as a death
benefit and shall be payable in the amount and to or for the benefit
of the persons following:
(a) Reasonable funeral expenses not exceeding $1,000.
(b) If there be a widow or widower and no child of the deceased to
such widow or widower 50 per centum of the average wages of the
deceased, during widowhood, or dependent widowerhood, with two
years' compensation in one sum upon remarriage; and if there be a
surviving child or children of the deceased, the additional amount of
162/3 per centum of such wages for each child; in the case of the death
or remarriage of such widow or widower, if there be one surviving
child of.the deceased employee, such child shall have his compensation
increased to 50 per centum of such wages, and if there be more than
one surviving child of the deceased employee, to such children, in
equal parts, 50 per centum of such wages increased by 162/3 per centum
of such wages for each child in excess of one: Provided, That the total
amount payable shall in no case exceed 66% per centum of such wages.
The deputy commissioner having jurisdiction over the claim may, in
his discretion, require the appointment of a guardian for the purpose
of receiving the compensation of a minor child. In the absence of such
a requirement the appointment of a guardian for such purposes shall
not be necessary.
(c) If there be one surviving child of the deceased, but no widow or
widower, then for the support of such child 50 per centum of the wages
of the deceased; and if there be more than one surviving child of the
PAGENO="0101"
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1z
deceased, but no widow or dependent husband, then for the support of
such children, in equal parts SO per centum of such wages increased by
16% per centurn of such wages for each child in excess of one: Pro-
vided, That the total amount payable shall in no case exceed 66% per
centum of such wages.
(d) 1/there be no surviving wife or husband or child~ or if the
amount payable to a surviving wife or husband and to children shall
be less in the aggregate than 6% per centum of the average wages of
the deceased; then for the support of grandchildren or brothers and
sisters, if dependent upon the deceased at the time of the injury, and
any other persons who satisfy the definition of the term "dependent" in
section 152 of title 26 o/the United States Code, but are not otherwise
eligible under this section, 20 per cent urn of such wages for the support
of each such person during such dependency and for the support of each
parent, or grandparent, of the deceased if dependent upon him at the
time of the injury, 25 per centum of such wages during such depend-
ency. But in no case shall the aggregate amount payable under this
subdivision exceed the difference between 66% per centum of such
wages and the amount payable as hereinbefore provided to widow or
widower and for the support of surviving child or children.
(e) In computing death benefits the average weekly wages of the
deceased shall be considered to have been not less than the applicable
national average weekly wage as prescribed in section 6(b) but the
total weekly benefits shall not exceed the average weekly wages of the
deceased.
(f) All questions of dependency shall be determined as of the time
of the injury.
(g) Aliens: Compensation under this chapter to aliens not residents
(or about to become nonresidents) of the United States or Canada
shall be the same in amount as provided for residents, except that
dependents in any foreign country shall be limited to surviving wife
and child or children, or if there be no surviving wife or child or
children, to surviving father or mother whom the employee has sup-
ported, either wholly or in part, for the period of one year prior to
the date of the injury, and except that the Secretary may, at his option
or upon the application of the insurance carrier shall, commute all
future installments of compensation to be paid to such aliens by pay-
ing or causing to be paid to them one-half of the commuted amount
of such future installments of compensation as determined by the
Secretary.
DETERMINATION OF PAY
SEc. 10. Except as otherwise provided in this Act, the average
weekly wage of the injured employee at the time of the injury shall
be taken as the basis upon which to compute compensation and shall
be determined as follows:
(a) If the injured employee shall have worked in the employment
in which he was working at the time of the injury, whether for the
same or another employer, during substantially the whole of the year
immediately preceding his injury, his average annual earnings shall
consist of three hundred times the average daily wage or salary for
a six-day worker and two hundred and sixty times the average daily
PAGENO="0102"
784
13
wage or salary for a five-day worker, which he shall have earned in
such employment during the days when so employed.
(b) If the injured employee shall not have worked in such employ-
ment during substantially the whole of such year, his average annual
earning if a six-day worker, shall consist of three hundred times the
average daily wage or salary and, if a five-day worker, two hundred
and sixty times the average daily wage or salary, which an employee
of the same class working substantially the whole of such immediately
preceding year in the same or in similar employment in the same or a
neighboring place shall have earned in such employment during the
days when so employed.
(c) If either of the foregoing methods of arriving at the average
annual earnings of the injured employee cannot reasonably and fairly
be applied, such average annual earnings shall be such sum as, having
regard to the previous earnings of the injured employee in the em-
ployment in which he was working at the time of the injury, and of
other employees of the same or most similar class working in the same
or most similar employment in the same or neighboring locality, or
other employment of such employee, including the reasonable value of
the services of the employee if engaged in self-employment, shall
reasonably represent the annual earning capacity of the injured
employee.
(d) The average weekly wages of an employee shall be one fifty-
second part of his average annual earnings.
(e) If it be established that the injured employee was a minor when
il1jured and that unclei normal conditions his wages should be cx-
pected to increase during the period of disabiilty the fact may be con-
siclereci in arriving at his average weekly wages.
(f) Effective October 1 of each year, the compensation or death
benefits payable for permanent total disability or death arising out
of injuries sustained after the date of enactment of this subsection
shall be increased by a percentage equal to the percentage (if any)
by which the applicable national wee/ely wage for the period begin-
ning on such October 1, as determined under section 6(b), exceeds the
applicable national average wee/ely wage, as so determined, for the
period beginning with the preceding October 1.
(g) The weekly compensation after adjustment under subsection
(f) shall be fixed at the nearest dollar. No adjustment of less than
$1 shall be made, but in no event shall compensation for death benefits
be reduced.
(h) (1) Not later than ninety days after the date of enactment of
this subsection, the compensation to which an employee or his sur-
vivor is entitled due to total permanent disability or death which
commenced or occurred prior to enactment of this subsection shall
be adjusted. The amount of such adjustment shall be determined in
accordance with regulations of the Secretary by designating as the
employee's average wee/ely wage the applicable national average
weekly wage determined under section 6 ( b) and (A) computing the
compensation to which such employee or survivor would be entitled
if the disabling injury or death had occurred on the day following
such enactment date and (B) subtracting therefrom the compensa-
tion to which such employee or survivor was entitled on such enact-
PAGENO="0103"
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14
ment date; except that no such employee or survivor shall receive
total compensation amounting to less than that to which he was en-
titled on such enactment date. Notwithstanding the foregoing sen-
tence, where such an employee or his survivor was awarded compen-
sation as the result of death or permanent total disability at less than
the maximum rate that was provided in this Act at the time of the
injury which resulted in the death or disability, then his average
weekly wage shall be determined by increasing his average weekly
wage at the time of such injury by the percentage which the appli-
cable national average weekly wage has increased between the year in
which the injury occurred and the first day of the first month follow-
ing the enactment of this section. Where such injury occurred prior
to 1947, the Secretary shall determine, on the basis of such economic
data as he deems relevant, the amount by which the employee's aver-
age weekly wage shall be increased for the pre-1947 period.
(2) Fifty per centum of any additional compensation or death
benefit paid as a result of the adjustment required by paragraphs (1)
and (3) of this subsection shall be paid out of the special fund estab-
lished under section 44 of this Act, and 50 per centum shall be paid
from appropriations.
(3) For the purposes of subsections (f) and (g) an injury which
resulted in permanent total disability or death which occurred prior
to the date of enactment of this subsection shall be considered to have
occurred on the day following such enactment date.
GUARDIAN FOR MINOR OR INCOMPETENT
SEC. 11. The deputy commissioner may require the appointment by
a court of competent jurisdiction, for any person who is mentally
incompetent or a minor, of a guardian or other representative to
receive compensation payable to such person under this Act and to
exercise the powers granted to or to perform the duties required of
such person under this Act.
NOTICE OF INJURY OR DEATH
SEC. 12. (a) Notice of an injury or death in respect of which com-
pensation is payable under this Act shall be given within thirty days
after the date of such injury or death, or thirty days after the employee
or beneficiary is aware or in the exercise of reasonable diligence should
have been aware of a relationship between the injury or death and the
employment. Such notice shall be given (1) to the deputy commis-
sioner in the compensation district in which the injury occurred, and
(2) to the employer.
(b) Such notice shall be in writing, shall contain the name and
address of the employee and a statement of the time, place, nature,
and cause of the injury or d~ath, and shall be signed by the employee.
or by some person on his behalf, or in case of death, by any person
claiming to be entitled to compensation for such death or by a person
on his behalf.
(c) Notice shall be given to the deputy commissioner by deliver-
ing it to him or sending it by mail addressed to his office, and to the
employer by delivering it to him or by sending it by mail addressed
PAGENO="0104"
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to him at his last known place of business. If the employer is a part-
nership, such notice may be given to any partner, or if a corporation,
such notice may be given to any agent or officer thereof upon whom
legal process may be served or who is in charge of the business in the
place where the injury occurred.
(d) Failure to give such notice shall not bar any claim under this
Act (1) if the employer (or his agent in charge of the business in the
place where the injury occurred) or the carrier had knowledge of the
injury or death and the deputy commissioner determines that the
employer or carrier has not been prejudiced by failure to give such
notice, or (2) if the deputy commissioner excuses such failure on the
ground that for some satisfactory reason such notice could not be
given; nor unless objection to such failure is raised before the deputy
commissioner at the first hearing of a claim for compensation in
respect of such injury or death.
TIME FOR FILING OF CLAIMS
SEC. 13. (a) Except as otherwise provided in this section, the right
to compensation for disability or death under this Act shall be barred
unless a claim therefor is filed within one year after the injury or death.
if payment of compensation has been made without an award on ac-
count of such injury or death, a claim may be filed within one year
after the date of the last payment. Such claim shall be filed with the
deputy commissioner in the compensation district in which such. injury
or death occurred. The time for filing a claim shall not begin to run
until the employee or beneficiary is aware, or by the exercise of rea-
sonable diligence should have been aware, of the relationship between
the injury or death and the employment.
(b) Notwithstanding the provisions of subdivision (a) failure to
file a claim within the period prescribed in such subdivision shall not
be a bar to such right unless objection to such failure is made at the
first hearing of such claim in which all parties in interest are given
reasonable notice and opportunity to be heard.
(c) If a person who is entitled to compensation under this Act is
mentally incompetent or a minor, the provisions of subdivision (a)
shall not be applicable so long as such person has no guardian or
other authorized representative, but shall be applicable in the case
of a person who is mentally incompetent or a minor from the date
of appointment of such guardian or other representative, or in the
case of a minor, if no guardian is appointed before he becomes of
age, from the date he becomes of age.
(d) Where recovery is denied to any person, in a suit brought at
law or in admiralty to recover damages in respect of injury or death,
on the ground that such person was an employee and that the de-
fendant was an employer within the meaning of this Act and that
such employer had secured compensation to such employee under
this Act, the limitation of time prescribed in subdivision (a) shall
begin to run only from the date of termination of such suit.
PAYMENT OF COMPENSATION
SEC. 14. (a) Compensation under this Act shall be paid periodi-
cally, promptly, and directly to the person entitled thereto, without
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an award, except where liability to pay compensation is controverted
by the employer.
(b) The first installment of compensation shall become due on the
fourteenth day after the employer has knowledge of the injury or
death, on which date all compensation then due shall be paid. There-
after compensation shall be paid in installments, semimonthly, except
where the deputy commissioner determines that payment in install-
ments should be made monthly or at some other period.
(c) Upon making the first payment, and upon suspension of pay-
inent for any case, the employer shall immediately notify the deputy
commissioner, in accordance with a form prescribed by the Secretary,
that payment of compensation has begun or has been suspended, as
the case may be.
(d) If the employer controverts the right to compensation he shall
file with the deputy commissioner on or before the fourteenth day
after he has knowledge of the alleged injury or death, a notice, in
accordance with a form prescribed by the Secretary, stating that the
right to compensation is controverted, the name of the claimant, the
name of the employer, the date of the. alleged injury or death, and the
grounds upon which the right to compensation is controverted.
(e) If any installment of compensation payable without an award
is not paid within .fourteen days after it becomes due, as provided in
subdivision (b) of this section, there shall be added to such unpaid
installment an amount equal to 10 per centum thereof, which shall be
paid at the same time as, but in addition to, such installment, unless
notice is filed under subdivision (d) of this section, or unless such non-
payment is excused by the deputy commissioner after a showing by the
employer that owing to conditions over which he had no control such
installment could not be paid within the period prescribed for the
payment.
(f) If any compensation, payable under the terms of an award, is
not paid within ten days after it becomes due, there shall be added to
such unpaid compensation an amount equal to 20 per centum thereof,
which shall be paid at the same time as, but in addition to, such com-
pensation, unless review of the compensation order making such award
is had as provided in section 21 and an order staywny paynvents has
been issued by the Board or court.
(g) Within sixteen days after final payment of compensation has
been made, the employer shall send . to the deputy commissioner a
notice, in accordance with a form prescribed by the Secretary, stating
that such final payment has been made, the total amount of compensa-
tion paid, the name of the employee and of any other person to whom
compensation has been paid, the date of the injury or death, and the
date to which compensation has been paid. If the employer fails to so
notify the deputy commissioner within such time the Secretary shall
assess against such employer a civil penalty in the amount of $100.
(h) The deputy commissioner (1) may upon his own initiative at
any time in a case in which payments are being made without an
award, and (2) shall in any case where right to compensation is con-
troverted, or where payments of compensation have been stopped or
suspended, upon receipt of notice from any person entitled to com-
pensation, or from the employer, that the right to compensation is
PAGENO="0106"
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17
controverted, or that payments of compensation have been stopped or
suspended, make such investigations, cause such medical examinations
to be made, or hold such hearings, and take such further action as he
considers will properly protect the rights of all parties.
(i) Whenever the deputy commissioner deems it advisable he may
require any employer to make a deposit with the Treasurer of the
United States to secure the prompt and convenient payment of such
compensation, and payments therefrom upon any awards shall be
made upon order of the deputy commissioner.
(j) `Whenever the deputy commissioner determines that it is in
the interest of justice, the liability of the employer for compensation,
or any part thereof as determined by the deputy commissioner with
the approval of the Seecretary, may be discharged by the payment
of a lump sum equal to the present value of future compensation
payments commuted, computed at 4 per centum true discount com-
pounded annually. The probability of the death of the injured em-
ployee or other person entitled to compensation before the expiration
of the period during which he is entitled to compensation shall be
determined in accordance with the American Experience Table of
Mortality, and the probability of the remarriage of the surviving
wife shall be determined in accordance with the remarriage tables
of the Dutch Royal Insurance Institution. The probability of the hap-
pening of any other contingency affecting the amount or duration of
the compensation shall be disregarded.
(k) If the employer has made advance payments of compensation,
he shall be entitled to be reimbursed out of any unpaid installment or
installments of compensation due.
(1) An injured employee or in case of death his dependents or
personal representative, shall give receipts for payment of compensa-
tion tO the employer paying the same and such employer shall pro-
duce the same for inspection by the deputy commissioner, whenever
required.
INVALID AGREEMENTS
SEc. 15. (a) No agreement by an employee to pay any portion of
premium paid by his employer to a carrier or to contribute to a benefit
fund or department maintained by such employer for the purpose of
providing compensation or medical services and supplies as required
by this Act shall be valid, and any employer who makes a deduction
for such purpose from the pay of any employee entitled to the bene-
fits of this Act shall be guilty of a misdemeanor and upon conviction
thereof shall be punished by a fine of not more than $1,000.
(b) No agreement by an employee to waive his right to compensa-
tinn under this Act shall be valid.
ASSIGNMENT AND EXEMPTION FROM CLAIMS OF CREDITORS
SEC. 16. No assignment, release, or commutation of compensation
or benefits due or payable under this Act, except as provided by this
Act, shall be valid, and such compensation and benefits shall be
exempt from all claims of creditors and from levy, execution, and
attachment or other remedy for recovery or collection of a debt, which
exemption may not be waived.
PAGENO="0107"
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COMPENSATION A LIEN AGAINST ASSETS
SEC. 17. (a) Any person entitled to compensation under the provi-
sions of this Act shall have a lien against the assets of the carrier or
employer for such compensation without limit of amount, and shall,
upon insolvency, bankruptcy, or reorganization in bankruptcy pro-
ceedings of the carrier or employer, or both, be entitled to preference
and priority in the distribution of the assets of such carrier or em-
ployer, or both.
(b) Where a trust fund which complies with section 302(e) of the
Labor-Management Relations Act of 1947 (29 U.S.C. 186(c)) estab-
l2shed pursuant to a collective-bargaining agreement in effect between
an employer and an employee entitled to compensation under this Act
has paid disability benefits to an employee which the employee is le-
gally obligated to repay by reason of his entitlement to comper~ation
under this Act, the Secretary may authorize a lien on such compensa-
tion in favor of the trust fund for the amount of such payments.
DEFAULTED PAYMENTS
SEC. 18. (a) In case of default by the employer in the payment of
compensation due under any award of compensation for a period of
thirty days after the compensation is due and payable, the person to
whom such compensation is payable may, within one year after such
default, make application to the deputy commissioner making the
compensation order or a supplementary order declaring the amount
of the default. After investigation, notice, and hearing, as provided
in section 19, a deputy commissioner shall make a supplementary
order, declaring the amount of the default, which shall be filed in the
same manner as the compensation order. In case the payment in de-
fault is an installment of the award, the deputy commissioner may, in
his discretion, declare the whole of the award as the amount in default.
The applicant may file a certified copy of such supplementary order
with the clerk of the Federal district court for the judicial district in
which the employer has his principal place of business or maintains
an office, or for the judicial district in which the injury occurred. In
case such principal place of business or office or place where the injury
occurred is in the District of Columbia, a copy of such supplementary
order may be filed with the clerk of the United States District Court
for the District of Columbia. Such supplementary order of the deputy
commissioner shall be final, and the court shall upon the filing of the
copy enter judgment for the amount declared in default by the supple-
mentary order if such supplementary order is in accordance with law.
Review of the judgment so entered may be had as in civil suits for
damages at common law. Final proceedings to execute the judgment
may be had by writ of execution in the form used by the court in
suits at common law in actions of assumpsit. No fee shall be required
for filing the supplementary order nor for entry of judgment thereon,
and the applicant shall not be liable for costs in a proceeding for re-
view of the judgment unless the court shall otherwise direct. The
court shall' modify such judgment to conform to any later compensa-
tion order upon presentation of a certified copy thereof to the court.
PAGENO="0108"
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19
(b) In cases where judgment cannot be satisfied by reason of the
employer's insolvency or other circumstances precluding payment, the
Secretary of Labor may, in his discretion and to the extent he shall
determine advisable after consideration of current commitments pay-
able from the special fund established in section 44, make payment
from such fund upon any award made under this Act, and in addition,
provide any necessary medical, surgical, and other treatment required
by section 7 of the Act in any case of disability where there has been a
default in furnishing medical treatment by reason of the insolvency of
the employer. Such an employer shall be liable for payment into such
fund of the amounts paid therefrom by the Secretary of Labor under
this subsection; and for the purpose of enforcing this liability, the Sec-
retary of Labor for the benefit of the fund shall be subrogated to all
the rights of the person receiving such payment or benefits, including
the right of lien and priority provided for by section 17 of this Act,
as against the employer and may by a proceeding in the name of the
Secretary of Labor under section 18 or under subsection (c) of section
21 of this Act, or both, seek to recover the amount of the default. or
so much thereof as in the judgment of the Secretary is possible, or the
Secretary may settle and compromise any such claim.
PROCEDURE IN RESPECT OF CLAIMS
SEC. 19. (a) Subject to the provisions of section 13 a claim for com-
pensation may be filed with the deputy commissioner in accordance
with regulations prescribed by the Secretary at any time after the first
seven days of disability following any injury, or at any time after
death, and the deputy commissioner shall have full power and author-
ity to hear and determine all questions in respect of such claim.
(b) Within ten days after such claim is filed the deputy commis-
sioner, in accordance with regulations prescribed by the Secretary,
shall notify the employer and any other person (other than the claim-
ant), whom the deputy commissioner considers an interested party,
that a claim has been filed. Such notice may be served personnally upon
the employer or other person, or sent to such employer or person by
registered mail.
(c) ~The deputy commissioner shall make or cause to be made such
investigations as he considers necessary in respect of the claim, and
upon application of any interested party shall order a hearing thereon.
If a hearing on such claim is ordered the deputy commissioner shall
give the claimant and other interested parties at least ten days' notice
of such hearing, served personally upon the claimant and other inter-
ested parties or sent to such claimant and other interested parties by
registered mail or by certified mail, and shall within twenty days after
such hearing is had, by order, reject the claim or make an award in
respect of the claim. If no hearing is ordered within twenty days after
notice is given as provided in subdivision (b), the deputy commissioner
shall, by order reject the claim or make an award in respect of the
claim.
(d) Notwithstandinq any other provi$ions of this Act, any hearing
held vnder this Act shall be conducted in accordance with the provi-
sion~ of section 554 of title 5 of the United States Code. Any such
PAGENO="0109"
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20
hearing shall be conducted by a hearing examiner qualified under sec-
tion 3105 of that title. All powers, duties, and responsibilities vested
by this Act, on the date of enactment of the Longshoremen's and Har-
bor Workers' Compensation Act Amendments of 1972, in the deputy
coimn-tissioners with respect to such hearings shall be vested in such
hearing examiners.
(e) The order rejecting the claim or making the award (referred
to in this Act as a compensation order) shall be filed in the office of
the deputy commissioner, and a copy thereof shall be sent by registered
mail or by certified mail to the claimant and to the employer at the
last known address of each.
(f) An award of compensation for disability may be made after the
death of an injured employee.
(g) At any time after a claim has been filed with him, the deputy
commissioner may, with the approval of the Secretary, transfer
such case to any other deputy commissioner for the purpose of mak-
ing investigation, taking testimony, making physical examinations
or taking such other necessary action therein as may be directed.
(h) An injured employee claiming or entitled to compensation
shall submit to such physical examination by a medical officer of
the United States or by a duly qualified physician designated or
approved by the Secretary as the deputy commissioner may require.
The place or places shall be reasonably convenient for the employee.
Such physician or physicians as the employee, employer, or carrier
may select and pay for may participate in an examination if the
employee, employer, or carrier so requests. Proceedings shall be sus-
pended and no compensation be payable for any period during which
the employee may refuse to submit to examination.
PRESUMPTIONS
SEC. 20. In any proceeding for the enforcement of a claim for com-
pensation under this Act it shall be presumed, in the absence of sub-
stantial evidence to the contrary-
(a) That the claim comes within the provisions of this Act.
(b) That sufficient notice of such claim has been given.
(c) That the injury was not occasioned solely by the intoxication
of the injured employee.
(d) That the injury was not occasioned by the willful intention of
the injured employee to injure or kill himself or another.
REVIEW OF COMPENSATION ORDER
SEC. 21. (a) A compensation order shall become effective when filed
in the office of the deputy commissioner as provided in section 19, and,
unless proceedings for the suspension or setting aside of such order
are instituted as provided in subdivision (b) of this section, shall be-
come final at the expiration of the thirtieth day thereafter.
(b) (1) There i~ hereby established a Benefits Review Board which
shall be composed of three members appointed by the Secretary from
among individuals who are especially qualified to serve on such Board.
The Secretary shall designate one of the members of the Board to serve
as chairman.
PAGENO="0110"
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21
(2) For the purpose of carrying out its functions under this Act, two
members of the Board shall constitute a quorum and official action can
be taken only on the affirmative vote of at least two members.
(3) The Board shall be authorized to hear and determine appeals
raising a substantial question of law or fact taken by any party in
interest from decisions with respect to claims of employees under this
Act and the extensions thereof. The Board's orders shall be based upon
the hearing record. The findings of fact in the decision under review
by the Board shall be conclusive if supported by substantial evidence
in the record considered as a whole. The payment of the amounts re-
quired by an award shall not be stayed pending final decision in any
such proceeding unless ordered by the Board. No stay shall be issued
unless irreparable injury would otherwise ensue to the employer or
carrier.
(4) The Board may, on its own motion or at the request of the Secre-
tary, remand a case to the hearing examiner for further appropriate
action. The consent of the parties in interest shall not be a prerequisite
to a remand by the Board.
(c) Any person adversely affected or aggrieved by a final order of
the Board may obtain a review of that order in the United States court
of appeals for the circuit in which the injury occurred, by filing in
such court within sixty days following the issuance of such Board
order a written petition praying that the order be m~odified or set aside.
A copy of such petition shall be forthwith transmitted by the clerk of
the court, to the Board, and to the other parties, and thereupon the
Board shall file in the court the record in the proceedings as provided
in section 2112 of title 28, United Stats Code. Upon such filing, the
court shall have jurisdiction of the proceeding and shall have the power
to give a decree affirming, modifying, or setting aside, in whole or in
part, the order of the Board and enforcing same to the extent that such
order is affirmed or modified. The orders, writs, and processes of the
court in sudh proceedings may `run, be served, and be returnable any-
where in the United States. The payment of the amounts required by
an award shall not be stayed pending final decision in any such proceed-
ing unless ordered by the court. No stay shall be issued unless irrep-
arable injury would otherwise ensue to the employer or carrier. The
order of the court allowing any stay shall contain a specific finding,
based upon evidence submitted to the court and identified by reference
thereto, that irreparable damage would result to the employer, and
specifying the nature of the damage.
(d) If any employer or his officers or agents fails to comply with a
compensation order making an award, that has become final, any bene-
ficiary of such award or the deputy commissioner making the order,
may apply for the enforcement of the order to the Federal district
court for the judicial district in which the injury occurred (or to the
United States District Court for the District of Columbia if the injury
occurred in the District). If the court determines that the order was
made and served in accordance with law, and that such employer or
his officers or agents have failed to comply therewith, the court shall
enforce obedience to the order by writ of injunction or by other proper
process, mandatory or otherwise, to enjoin upon such person and his
officers and agents compliance with the order.
PAGENO="0111"
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22
(e) Proceedings for suspending, setting aside, or enforcing a com-
pensation order, whether rejecting a claim or making an award, shall
not be instituted otherwise than as provided in this section and
section 18.
APPEARANCE OF UNITED STATES ATTORNEY FOR SECRETARY OF LABOR
OR DEPUTY COMMISSIONER
SEC. 21a. Attorneys appointed by the Secretary shall rep-resent the
Secretary, the deputy cornmi~sioner, or the Board in any court pro-
ceedings under section 21 or other provisions of this Act except for
proceedings in the Suprem~e Court of the United States.
MODIFICATION OF AWARDS
SEC. 22. Upon his own initiative, or upon the application of any
party in interest, on the ground of a change in conditions or because
of a mistake in a determination of fact by the deputy commissioner,
the deputy commissioner may, at any time prior to one year after
the date of the last payment of compensation, whether or not a com-
pensation order has been issued, or at any time prior to one year after
the rejection of a claim review a compensation case in accordance
with the procedure prescribed in respect of claims in section 19, and
in accordance with such section issue a new compensation order which
may terminate, continue, reinstate, increase, or decrease such compen-
sation, or award compensation. Such new order shall not affect any
compensation previously paid, except that an award increasing the
compensation rate may be made effective from the date of the injury,
and if any part of the compensation due or to become due is unpaid,
an award decreasing the compensation rate may be made effective from
the date of the injury, and any payment made prior thereto in excess
of such decreased rate shall be deducted from any unpaid compensa-
tion, in such manner and by such method as may be determined by the
deputy commissioner with the approval of the Secretary.
PROCEDURE BEFORE THE DEPUTY COMMISSIONER
SEC. 23. (a) In making an investigation or inquiry or conducting
a hearing the deputy commissioner or Board shall not be bound by
common law or statutory rules of evidence or by technical or formal
rules of procedure, except as provided by this Act; but may make such
investigation or inquiry or conduct such hearing in such manner as to
best ascertain the rights of the parties. Declarations of a deceased
employee concerning the injury in respect of which the investigation
or inquiry is being made or the hearing conducted shall be received
in evidence and shall, if corroborated by other evidence, be sufficient
to establish the injury.
(b) Hearings before a deputy commissioner or Board shall be open
to the public and shall be stenographically reported, and the deputy
commissioners, subject to the approval of the Secretary, are author-
ized to contract for the reporting of such hearings. The Secretary shall
by regulation provide for the preparation of a record of the hearings
and other proceedings before the deputy commissioner or Board.
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794
WITNESSES
SEC. 24. No person shall be required to attend as a witness in any
proceeding before a deputy commissioner at a place outside of the
State of his residence and more than one hundred miles from his
place of residence, unless his lawful mileage and fee for one day's
attendance shall be first paid or tendered to him; but the testimony
of any witness may be taken by deposition or interrogatories accord-
rng to the rules of practice of the Federal district court for the judicial
district in which the case is pending (or of the United States District
Court for the District of Columbia if the case is pending in the
District).
WITNESS FEES V
SEC. 25. Witnesses summoned in a proceeding before a deputy com-
missioner or whose depositions are taken shall receive the same fees
and mileage as witnesses in courts of the United States.
COSTS IN PROCEEDINGS BROUGHT WITHOUT REASONABLE GROUNDS
SEC. 26. If the court having jurisdiction of proceedings in respect
of any claim or compensation order determines that the proceedings
in respect of such claim or order have been instituted or continued
without reasonable ground, the costs of such proceedings shall be
assessed against the party who has so instituted or continued such
proceedings.
POWERS OF DEPUTY COMMISSIONERS
SEC. 27. (a) The deputy commissioner or Board shall have power to
preserve and enforce order during any such proceedings; to issue
subpoenas for, to administer oaths to, and to compel the attendance
and testimony of witnesses, or the production of books, papers, docu-
ments, and other evidence, or the taking, of depositions before any
designated individual competent to administer oaths; to examine
witnesses; and to do all things conformable to law which may be neces-
sary to enable him effectively to discharge the duties of his office.
(b) If any person in proceedings before a deputy commissioner or
Board disobeys or resists any lawful order or process, or misbehaves
during a hearing or so near the place thereof as to obstruct the same,
or neglects to produce, after having been ordered to do so, any perti-
nent book, paper, or document, or refuses to appear after having been
subpoenaed, or upon appearing refuses to take the oath as a witness,
or after having taken the oath refuses to be examined according to
law, the deputy commissioner or Board shall certify the facts to the
district court having jurisdiction in the place in which he is sittmg (or
to the United States District Court for the District of Columbia if he
is sitting in such District) which shall thereupon in a summary man-
ner hear the evidence as to the acts complained of, and, if the evidence
so warrants, punish such person in the same manner and to the same
extent as for a contempt committed before the court, or commit such
person upon the same conditions as if the doing of the forbidden act
had occurred with reference to the process of or in the presence of the
court.
PAGENO="0113"
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24
FEES FOR SERVICES
SEC. ~8. (a) if the em~ployer or carrier declines to pay any com-
pensation on or before the thirtieth day after receiving written notice
of a claim for compensation having been filed from the deputy com-
missioner, on the ground that there is no liability for compensation
within ~he provisions of this Act, and the person seeking benefits shall
thereafter have utilized the services of ai~i attorney at law in the suc-
cessful prosecution of his claim, there sh~ill be awarded, in addition
to the award of compensation, in a compensation order, a reasonable
attorney's fee against the employer or carrier in an amount approved
by the deputy commissioner, Board, or court, as the case may be, which
shall be paid directly by the employer or carrier to the attorney for
the claimant in a lump sum after the compensation order becomes
final.
(b) If the employer or carrier pays or tenders payment of com-
pensation without an award pursuant to section 14 (a) and (b) of
this Act, and thereafter a controversey develops over the amount of
additional compensation, if any, to which the employee may be en-
titled, the deputy commissioner or Board shall set the matter for an
inform~al conference and following such conference the deputy com-
missioner or Board shall recommend in writing a disposition of the
controversy, if the employer or carrier refuse to accept such written
recommendation, within fourteen days after its receipt by them, they
shall pay or tender to the employee in writing the additional com-
pensation, if any, to which they believe the employee is entitled. If
the employee refuses to accept such payment or tender of compensation,
and thereafter utilizes the services of an attorney at law, and if the
compensation thereafter awarded is greater than the amount paid or
tendered by the employer or carrier, a reasonable attorney's fee based
solely upon the difference between the amount awarded and the amount
tendered or paid shall be awarded in addition to the amount of com-
pensation. The foregoing sentence shall not apply if the controversy
relates to degree or length of disability, and if the employer or car-
rier offers to submit the case for evaluation by physicians employed
or selected by the Secretary, as authorized in Section 7(e) and offers to
tender an amount of compensation based upon the degree or length of
disability found by the independent medical report at such time as an
evaluation of disability can be made. if the. claimant is successful in
review proceedings before the Board or court in any such case an
award may be made in favor of the claimant and against the employer
or carrier for a reasonable attorney's fee for claimant's counsel in ac-
cord with the above provisions, in all other cases any claim for legal
services shall not be assessed against the employer or carrier.
(c) 1~ all cases fees for attorneys representing the claimant shall
be approved in the manner herein provided, if any proceedings are
had before the Board or any court for review of any action, award,
order, or decision, the Board or court may approve an attorney's fee
for the work done before it by the attorney for the claimant. An ap-
proved attorney's fee, in cases in which the obligation to pay the fee
is upon the claimant, may be made a lien upon the compensation due
und&r an award; and the deputy commissioner, Board, or court shall
fix in the award approving the fee, such lien and manner of payment.
75623 0 - 74 - pt. 3 - 8
PAGENO="0114"
796
25
(d) In cases where an attorney's fee is awarded against an employer
or carrier there may be further assessed against such employer or
c~rrier as costs, fees and mileage for necessary witnesses attending the
hearing at the instance of claimant. Both the necessity for the witness
and the reasonableness of the fees of expert witnesses must be approved
by the hearing officer, the Board, or the court, as the case may be.
The amounts awarded against an employer or carrier as attorney's fees,
costs, fees and mileage for witnesses shall not in any respect affect or
diminish the compensation payable under this, Act.
(e) Any person who receives any fees, other considei~ation, o~r any
gratuity on account of services rendered as a represe~ntative of a claim-
ant, unless such consid&ration or gratuity is approved by the deputy
commissioner, Board, or court, or who makes it a business to solicit
employment for a lawyer, or for himself in respect of any claim or
award for compensation, shall upon conviction thereof, for each offense
be punished by a fine of not more than $1,000 ar by imprisonment for
not more than one year, or by both such fine and imprisonment.
RECORD OF INJURY OR DEATH
SEC. 29. Every employer shall keep a record in respect of any in-
jury to an employee. Such record shall contain such information of
disease, other disability, or death in respect of such injury as the
Secretary may by regulation require, and shall be available to inspec-
tion by the Secretary or by any State authority as such times and
under such conditions as the Secretary may by regulation prescribe.
REPORTS
SEC. 30. (a) Within ten days from the date of any injury or death
or from the date that the employer has knowledge of a disease or in-
fection in respect of such injury, the employer shall send to the Sec-
retary a report setting forth (1) the name, address, and business of
the employer; (2) the name, address, and occupation of the employee;
(3) the cause and nature of the injury or death; (4) the year, month,
day, and hour when and the particular locality where the injury or
death occurred; and (5) such other information as the Secretary
may require. A copy of such report shall be sent at the same time to
the deputy commissioner in the compensation district in which the
injury occurred.
(b) Additional reports in respect of such injury and of the condi-
tion of such employee shall be sent by the employer to the Secretary
and to such deputy commissioner at such times and in such manner
as the Secretary may prescribe.
(c) Any report provided for in subdivision (a) or (b) shall not
be evidence of any fact stated in such report in any proceeding in
respect of any such injury or death on account of which the report
is made.
(d) The mailing of any such report and copy in a stamped enve-
lope, within the time prescribed in subdivision (a) or (b), to the
Secretary and deputy commissioner, respectively, shall be a compli-
ance with this section.
PAGENO="0115"
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26
(e) Any employer who fails or refuses to send any report required
of him by this section shall be subject to a civil penalty not to exceed
$500 for each such failure or refusal.
(f) Where the employer or the carrier has been given notice, or
the employer (or his agent in charge of the business in the place where
the injury occurred) or the carrier has knowledge, of any injury or
death of an employee and fails, neglects, or refuses to file report
thereof as required by the provisions of subdivision (a) of this section,
the limitations in subdivision (a) of section 13 of this Act shall not
begin to run against the claim of the injured employee or his depend-
ents entitled to compensation, or in favor of either the employer or
the carrier, until such report shall have been furnished as required
by the provisions of subdivision (a) of this section.
PENALTY FOR MISREPRESENTATION
SEC. 31. Any person who willfully makes any false or misleading
statement or representation for the purpose of obtaining any benefit
or payment under this Act shall be guilty of a misdemeanor and on
conviction thereof shall be punished by a fine of not to exceed $1,000
or by imprisonment of not to exceed one year, or by both such fine
and imprisonment.
SECURITY FOR COMPENSATION
SEC. 32. (a) Every employer shall secure the payment of compen-
sation under this Act-
* (1) By insuring and keeping insured the payment of such compen-
sation with any stock company or mutual company or association, or
with any other person or fund, while such person or fund is authorized
(A) under the laws of the United States or of any State, to insure
workmen's compensation, and (B) by the Secretary, to insure pay-
ment of compensation under this Act; or
(2) By furnishing satisfactory proof to the Secretary of his financial
ability to pay such compensation and receiving an* authorization from
the Secretary to pay such compensation directly. The Secretary may,
as a condition to such authorization, require such employer to deposit
in a depository designated by the Secretary either an indemnity bond
or securities (at the option of the employer) of a kind and in an amount
determined by the Secretary, and subject to such conditions as the Sec-
retary may prescribe, which shall .include authorization to the Secre-
tary in case of default to sell any such securities sufficient to pay com-
pensation awards or to bringsuit upon such bonds, to procure prompt
payment of compensation under this Act. Any employer secur.ingcom-
pensation in accordance with the provisions of this paragraph shall be
known as a self-insurer.
(b) In granting authorization to any carrier to insure payment of
con~pensation under this Act the Secretary may take into consideration
the recommendation of any State authority having supervision. over
carriers or over workmen's compensationS and may authorize any car-
rier to insure the payment of. compensation under. this Act in a limited
territory. Any marine protection and indemnity mutual insurance cor-
poration or association, authorized to writh insurance against liability
for loss or damage from personal injury arid death, and for other losses
and damages, incidental to or in respect of the ownership, operation, or
PAGENO="0116"
798
27
chartering of vessels on a mutual assessment plan, shall be deemed a
qualified carrier to insure compensation under this Act. The Secretary
may suspend or revoke any such authorization for good cause shown
after a hearing at which the carrier shall be entitled to be heard in
person or by counsel and to present evidence. No suspension or revoca-
tion shall affect the liability of any carrier already incurred.
COMPENSATION FOR INJURIES WHERE THIRD PERSONS ARE LIABLE
SEC. 33. (a) If an account of a disability or death for which compen-
sation is payable under this Act the person entitled to such compensa-
tion determines that some person other than the employer or a person
or persons in his employ is liable in damages, he need not elect whether
to receive such compensation or to recover damages against such third
person.
(b) Acceptance of such compensation under an award in a com-
pensation order filed by the deputy commissioner or Board shall oper-
ate as an assignment to the employer of all right of the person entitled
to compensation to recover damages against such third person unless
such person shall commence an action against such third person within
six months after such award.
(c) The payment in section 44 shall operate as an assignment to the
employer of all right of the legal representative of the deceased (here-
inafter referred to as "representative") to recover damages against
such third person. . .~
(d) Such employer on account of such assignment may either insti-
tute proceedings for the recovery of such damages or may comprornise~
with such third person either without or after instituting such
proceeding.
(e) Any amount recovered by such employei on account of such
assignment, whether or not as the result of a compromise, shall be dis-
tributed as follows:
(1) The employer shall retain an amount equal to-
(A) the expenses incurred by him in respect to such proceedings or
compromise (including a reasonable attorney's fee as determined by
the deputy commissioner or Board);
(B) the cost of all benefits actually furnished by him to the em-
ployee under section 7;
(C) all amounts paid as compensation;
(D) the present value of all amounts thereafter payable as compen-
sation,- such present value to be computed in accordance with a sched-
ule prepared by the Secretary, and the present value of the cost of all
benefits thereafter to be furnished under section 7, to be estimated by
the deputy commissioner, and the amounts so computed and esti-
mated to be retained by the employer as a trust fund to pay such
compensation and the cost of such benefits as they become due, and
to pay any sum finally remaining in excess thereof to the person en-
titled to compensation or to the representative; and
(2) The employer shall pay any excess to the person entitled to
compensation or to the representative, less one-fifth of such excess
which shall belong to the employer.
(f') If the person entitled to compensation institutes proceedings
within the period prescribed in section 33(b), the em~3loyer shall be
PAGENO="0117"
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28
required to pay as compensation under this Act a sum equal to the
excess of the amount which the Secretary determines is payable on
account of such injury or death over the amount recovered against
such third person.
(g) If compromise with such third person is made by the person
entitled to compensation or such representative of an amount less thai1
the compensation to which such person or representative would be
entitled to und'~r this Act, the employer shall be liable for compensa-
tion as determined in subdivision (f) only if the written approval of
such compromise is obtained from the employer and its insurance
carrier by the person entitled to compensation or such representative
at the time of or prior to such compromise on a form provided by the
Secretary and filed in the offIce of the deputy commissioner having
jurisdiction of such injury or death within thirty days after such
compromise is made.
(h) Where the employer is insured and the insurance carrier has
assumed the payment of the compensation, the insurance carrier shall
be subrogated to all the rights of the employer under this section.
(i) The right to compensation or benefits under this Act shall be
the exclusive remedy to an employee when he is injured, or to his
eligible survivors or legal representatives if he is killed, by the negli-
gence or wrong of any other person or persons in the same employ:
Provided, That this provision shall not affect the liability of a person
other than an officer or employee of the employer.
COMPENSATION NOTICE
SEC. 34. Every employer who ha~ secured compensation under the
~provisions of this Act shall keep posted in a conspicuous place or
places in and about his place or places of business typewritten or
printed notices, in accordance with a form prescribed by the Secre-
tary, stating that such employer has secured the payment of compen-
sation in accordance with the provisions of this Act. Such notices
shall contain the name and address of the carrier, if any, with whom
the employer has secured payment of compensation and the date of
the expiration of the policy.
SUBSTITUTION OF CARRIER FOR EMPLOYER
SEC. 35. In any case where the employer is not a self-insurer, in
order that the liability for compensation imposed by this Act may be
most effectively discharged by the employer, and in order that the
administration of this Act in respect of such liability may be facili-
tated, the Secretary shall by regulation provide for the discharge,
by the carrier for such employer, of such obligations and duties of the
employer in respect to such liability, imposed* by this Act upon the
employer, as it considers proper in order to effectuate the provisions
of this Act. For such purposes (1) notice to or knowledge of an
employer of the occurrence of the injury shall be notice to or knowl-
edge of the carrier, (2) jurisdiction of the employer by a deputy
commissioner, the Board, or the Secretary, or any court under this Act
shall be jurisdiction of the carrier and (3) any requirement by a
PAGENO="0118"
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29
deputy commissioner, the Board or the Secretary, or any court under
any compensation order, finding, or decision shall be binding upon
the carrier in the same manner and to the same extent as upon the
employer.
INSURANCE POLICIES
SEC. 36. (a) Every policy or contract of insurance issued under
authority of this Act shall contain (1) a provision to carry out the
provisions of section 35, and (2) a provision that insolvency or bank-
ruptcy of the employer and/or discharge therein shall not relieve the
carrier from payment of compensation for disability or death sus-
tained by an employee during the life of such policy or contract.
(b) No contract or policy of insurance issued by a carrier under this
Act shall be canceled prior to the date specified in such contract or
policy for its expiration until at least thirty days have elapsed after
a notice of cancellation has been sent to the deputy commissioner and
to the employer in accordance with the provisions of subdivision (c)
of section 12.
CERTIFICATE OF COMPLIANCE WITH THIS ACT
SEC. 37. No stevedoring firm shall be employed in any compensa-
tion district by a vessel or by hull owners until it presents to such ves-
sel or hull owners a certificate issued by a deputy commissioner as-
signed to such district that it has complied with the provisions of this
Act requiring the securing of compensation to its employees. Any per-
son violating the provisions of this section shall be punished by a fine
of not more than $1,000, or by imprisonment for not more than one
year, or by both such fine and imprisonment.
PENALTY FOR FAILURE TO SECURE PAYMENT OF COMPENSATION
SEC. 38. (a) Any employer required to secure the payment of com-
pensation under this Act who fails to secure such compensation shall
be guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not more than $1,000, or by imprisonment for
not more than one year, or by both such fine and imprisonment; and in
any case where such employer is a corporation. the president, secre-
tary, and treasurer thereof shall be also severally liable to such fine
or imprisonment as herein provided for the failure of such corpora-
tion to secure the payment of compensation; and such president, sec-
retary, and treasurer shall be severally personally liable, jointly with
such corporation, for any compensation or other benefit which may
accrue under the said Act in respect to any injury which may occur
to any employee of such corporation while it shall so fail to secure
the payment of compensation as required by section 32~ of this Act.
(b) Any employer who knowingly transfers, sells, encumbers, as-
signs, or in any manner disposes of, conceals, secretes, or destroys
any property belonging to such employer, after one of his employees
has been injured within the purview of this Act, and with intent to
avoid the payment of compensation under this Act to such employee
or his dependents, shall be guilty of a misdemeanor and, upon con-
viátión thereof, shall be punished by a fine of not more than $1,000,
PAGENO="0119"
801
30
or by imprisonment for not more than one year, or by both such fine
and imprisonment; and in any case where such employer is a corpora-
tion, the president, secretary, and treasurer thereof shall be also sev-
erally liable to such penalty of imprisonment as well as jointly liable
with such corporation for such fine.
(c) This section shall not affect any other liability of the employer
under this Act.
ADMINISTRATION AND VOCATIONAL REHABILITATION
SEC. 39. (a) Except as otherwise specifically provided, the Secretary
shall administer the provisions of this Act, and for such purpose the
Secretary is authorized (1) to make such rules and regulations; (2) to
appoint and fix the compensation of such temporary technical assist-
ants and medical advisers, and, subject to the provisions of the civil
service laws, to appoint, and, in accordance with the Classification Act
of 1923, to fix the compensation of such deputy commissioners (exce.pt
deputy commissioners appointed under subdivision (a) of section 40)
and other officers and employees; and (3) to make such expenditures
(including expenditures for personal services and rent at the seat of
government and elsewhere, for law books, books of reference,, periodi-
cals, and for printing and binding) as may be necessary in the adminis-
tration of this Act. All expenditures of the Secretary in the administra-
tion of this Act shall be allowed and paid as provided in section 45 upon
the presentation of itemized vouchers therefor approved by the
Secretary.
(b) The Secretary shall establish compensation districts, to include
the high seas and the areas within the United States to which this Act
applies, and shall assign to each such district one or more deputy com-
missioners, as the Secretary deems advisable. Judicial proceedings
under sections 18 and 21 of this Act in respect to any injury or death
occurring on the high seas shall be instituted in the district court within
whose territorial jurisdiction is located the office of the deputy commis-
sioner having jurisdiction in respect of such injury or death (or in the
United States District Court for the District of Columbia if such office
is located in such District).
(c) (1) The Secretary shall, upon request, provide persons covered
by this Act with information and assistance relating to the Act's cov-
erage and compensation and the procedures for obtaining such corn-
pensation including assistance in processing a claim. The Secretary
may, upon request, provide persons covered by this Act with legal
assistance in processing a claim. The Secretary shall also provide
employees receiving compensation information on medical, manpower,
and vocational rehabilitation services and assist such employees in
obtaining the best such services available.
(2) The Secretary shall direct the vocational rehabilitation of per-
manently disabled employees and shall arrange with the appropriate
public or private agencies in States or Territories, possessions, or the
District of Columbia for such rehabilitation. The Secretary may in his
discretion furnish such prosthetic appliances or other apparatus made
necessary by an injury upon which an award has been made under this
Act to render a disabled employee fit to engage in a remunerative.
occupation. Where necessary rehabilitation services are not available
PAGENO="0120"
802
31
otherwise, th~ Secretary of Labor may, in his discretion, use the fund
provided for in section 44 fn such amounts as may be necessary to pro-
cure such services, including necessary prosthetic appliances or other
apparatus. This fund shall also be available in such amounts as may
be authorized in annual appropriations for the Department of Labor
for the costs of administering this subsection.
DEPUTY COMMISSIONERS
SEc. 40. (a) The Secretary may appoint as deputy commissioners
any member of any board, commission, or other agency of a State to
act as deputy commissioner for any compensation district or part
thereof in such State, and may make arrangements with such board,
commission, or other agency for the use of the personnel and facilities
thereof in the administration of this Act. The Secretary may make
such arrangements as may be deemed advisable by him for the pay-
ment of expenses of such board, commission, or other agency, incurred
in the administration of this Act pursuant to this section, and for the
payment of salaries to such board, commission, or other agency, or the
members thereof, and may pay any amounts agreed upon to the proper
officers of the State, upon vouchers approved by the Secretary.
(b) In any Territory of the United. States or in the District of
Columbia a person holding an office under the United States may be
appointed deputy commissioner and for services rendered as deputy
commissioner may be paid compensation, in addition to that he is
receiving from the United States, in an amount fixed by the Secretary
in accordance with the Classification Act of 1923.
(c) Deputy commissioners (except deputy commissioners appointed
under subdivision (a) of this section) may be transferred from one
compensation district to another and may be temporarily detailed
from one compensation district for service in another in the discretion
of the Secretary.
(d) Each deputy commissioner shall maintain .and keep open during
reasonable business hours an office, at a place designated by the Sec~e-
tary, for the transaction of business under this Act, at which office
he shall keep his official records and papers. Such office shall be fur-
nished and equipped by the Secretary, who shall also furnish the
deputy commissioner with all necessary clerical and other assistants,
records, books, blanks, and supplies. Wherever practicable such office
shall be located in a building owned or leased by the United States;
otherwise the Secretary shall rent suitable quarters.
(e) If any deputy commissioner's is removed from office, or. for any
reason ceases to act as such deputy commissioner, all of his official
records and papers and office equipment shall be transferred to his
successor in office or, if there be no successor, then to the Secretary or
to a deputy commissioner designated by the Secretary.
(f) Neither a deputy commissioner or Board member nor any busi-
ness associate of a deputy commissioner or board member shall appear
as attorney in any proceding under this Act, and no deputy commis-
sioner or Board member shall act in any such case in which he is inter-
ested, or when he is employed by any party in interest or related to any
party in interest by consanguinity or affinity within the third degree
as determined by the common law.
PAGENO="0121"
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32
SAFETY RULES AND REGULATIONS
SEc. 41. (a) Every employer shall furnish and maintain employ-
ment and places of employment which shall be reasonably safe for his
employees in all employments covered by this Act and shall install,
furnish, maintain, and use such devices and safeguards with partic-
ular reference to equipment used by and working conditions estab-
lished by such employers as the Secretary may determine by regula-
tion or order to be reasonably necessary to protect the life, health,
and safety of such employees, and to render safe such employment
and places of employment, and to prevent injury to his employees.
However, the Secretary may not make determinations by regulation
or order under this section as to matters within the scope of title 52
of the Revised Statutes and Acts supplementary or amendatory there-
to, the Act of June 15, 1917 (ch. 30, 40 Stat. 220), as amended, or
section 4(e) of the Act of August 7, 1953 (ch. 345, 67 Stat. 462), as
amended.
(b) The Secretary, in enforcing and administering the provisions
of this section, is authorized in addition to such other powers and
duties as are conferred upon him-
(1) to make studies and investigations with respect to safety pro..
visions and the causes and prevention of injuries in employments
covered by this Act and from time to time make to Congress such
recommendations as he may deem proper as to the best means of
preventing such injuries, and in making such studies and investiga-
tions to cooperate with any agency of the United States or with any
State agency engaged in similar work;
(2) to utilize the services of any agency of the United States or
any State agency engaged in similar work (with the consent of such
agency) in connection with the administration of this section;
(3) to promote uniformity in safety standards in employments
covered by this Act through cooperative action with any agency of
the United States or with any State agency engaged in similar work;
(4) to provide for the establishment and supervision of programs
for the education and training of employers and employees in the
recognition, avoidance, and prevention of unsafe working conditions
in employments covered by this Act, and tQ consult with and advise
employers as to the best means of preventing injuries;
(5) to hold such hearings, issue such orders, and make such deci-
sions, based upon findings of fact, as are deemed to be necessary to
enforce the provisions of this section, and for such purposes the Sec-
retary and the district courts shall have the authority and jurisdic-
tion provided by section 5 of the Act of June 30, 19~16 (ch. 881, 49
Stat. 2036), as amended, and the Secretary shall be represented in any
court proceedings as provided in the Act of May 4, 1928 (ch. 502,
45 Stat. 490), as amended;
(c) The Secretary or his authorized~ representative may inspect
such places of employment, question such employees, and investigate
such conditions, practices, or matters in connection with employment
subject to this Act, as hemay deem appropriate to determine whether
any person has violated any provision of this section, or any rule or
regulation issued thereunder, or which may aid in the enforcement of
PAGENO="0122"
804
the provisions of this section. No employer or other person shall re-
fuse to admit the Secretary or his. authorized representatives to any
such place or shall refuse to permit atiy such inspection.
(d) Any employer may request the advice of the Secretary or his
authorized representative, in complying with the requirements of any
rule or regulation adopted to carry out the provisions of this section.
In case of practical difficulties or unnecessary hardship, the Secretary
in his discretion may grant variations from any such rule or regula-
tion, or particular provisions thereof, and permit the use of other or
different devices if he finds that the purpose of the. rule or regulation
will be observed by the variation and the safety of employees will be
equally secured thereby. Any person affected by such rule or regula-
tion, or his agent, may request the Secretary to grant such variation,
stating in writing the grounds on which his request is based. Any
authorization by the Secretary of a variation shall be in writing, shall
describe the conditions under which the variation shall be permitted,
and shall be published as provided in section 3 of the Administrative
Procedure Act (ch. 324, 60 Stat. 237), as amended. A properly in-
dexed record of all variations shall be kept in the office of the Secretary
and open to public inspection.
(e) The United States. district courts shall have jurisdiction for
cause shown, in any action brought by the Secretary, represented as
provided in section 21a of this act, to restrain violations of this sec-
tion or of any rule, regulation, or order of the Secretary adopted to
carry out the provisions of this section.
(f) Any employer who, willfully violates or fails or refuses to
comply with the. provisions of subsection (a) of.. this section, or with
any lawful rule, regulation, or order adopted to carry out th~ provi-
sions of this section, and any employer or other person who willfully
interferes with, hinders, or delays the Secretary or his authorized
representative in carrying out his duties under subsection (c) of this
section by refusing to admit the Secretary or his authorized repre-
sentative to any place, or to permit the inspection or examination of
any employment or place of employment, or who willfully hinders or
delays the Secretary or his authorized representative in the perform-
ance of his duties in the enforcement of this section, shall be guilty
of an offense, and, upon conviction thereof, shall be punished for each
offense by a fine of not less than $100 nor more than $3,000; and in
any case where such employer is a corporation, the officer who willfully
permits any such violation to occur shall be guilty of an offense, and,
upon conviction thereof, shall be punished also for each offense by a
fine of not less than $100 nor more than $3,000. The liability here-
under shall not affect any other liability of the employer under this
Act.
(g) (1) The provisions of this section shall not apply in the case
of any employment relating to the operations for the exploration, pro-
duct.ion, or transportation by pipeline of mineral reso~irces upon the
navigable waters of the United States, nor under the authority of
the Act of August 7, 1953 (ch. .345, 67 Stat. 462), nor in the case of
any employment in connection with lands (except filled in, made or
reclaimed lands) beneath the navigable waters as defined in the Act
of May 22, 1953 (ch. 65, 67 Stat. 29) nor in the case of any employment
PAGENO="0123"
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34
for which compensation in case of disability or death is provided for
employees under the authority of the Act of May 17, 1928 (ch. 612,
45 Stat. 600), as amended, nor under the authority of the Act of Au-
gust 16, 1941 (ch. 357, 55 Stat. 622), as amended.
(2) The provisions of this section, with the exception of paragraph
(1) of subsection (b), shall not be applied under the authority of the
Act of September 7, 1916 (ch. 458, 39 Stat. 742), as amended.
TRAVELING EXPENSES
SEC. 42. The Secretary, deputy commissioners, and other employees
of the Secretary shall be entitled to receive their necessary traveling
expenses and expenses actually incurred for subsistence while travel-
ing on official business and away from their designated stations, as
provided by the Subsistence Expense Act of 1926.
ANNUAL REPORT
SEC. 43. The Secretary shall make to Congress at the beginning of
each regular session a report of the administration of this Act for
the preceding fiscal year, including a detailed statement of receipts of
and expenditures from the funds established in sections 44 and 45,
together with such recommendations as the Secretary deems advisable
SPECIAL FUND
SEC. 44. (a) There is hereby established in the Treasury of the
United States a special fund. Such fund shall be administered by the
Secretary. The Treasurer of the United States 8/tall be the custodian
of such fund, and all moneys and securities in such fund shall be held
in trust by such Treasurer and shall not be money or property of the
United States.
(b) The Treasurer is authorized to disburse moneys from such
fund only upon order of the Secretary. He shall be required to give
bond in an amount to be fixed and with securities to be approved by
the Secretary of the Treasury and the Comptroller General of the
United States conditioned upon the faithful performance of his duty
as custodian of such fund.
(c) Payments into such fund shall be made as follows:
(1) Whenever the Secretary determ,ines that there is no person
entitled under this Act to compensation for the death of art employee
which would otherwise be compensable under this Act, the appropriate
employer shall pay $5,000 as compensation for the death of such an
employee.
(2) At the beginning of each calendar year the Secretary shall esti-
mate the probable expenses, of the fund during that calendar year and
each carrier or self-insurer shall make payments into the fund on a
prorated assessment by the Secretary in the proportion that the total
compensation and medical payments made on risks covered by this
Act by each carrier and self-insurer bears to the total of such payments
made by all carriers and self-insurers under the Act in the prior calen-
dar year in accordance with a formula and schedule to be determined
from time to time by the Secretary to maintain adequate reserves in
the fund.
PAGENO="0124"
806
35
(3) All amounts collected as fines and penalties under the provisions
of this Act shall be paid into such fund.
(d) (1) For the purpose of making rules, regulations, and deter-
minations under this section and for providing enforcement thereof,
the Secretary may investigate and gather appropriate data from each
carrier and self-insurer. For that purpose, the Secretary may enter
and inspect such places and records (and make such transcriptions
thereof), question such employees, and investigate such facts, condi-
tions, practices, or matters as he may deem necessary or appropriate.
(2) Each carrier and self -insurer shall make, keep, and preserve
such records, and make such reports and provide sue/b additional in-
formation, as prescribed by regulation or order of the Secretary, as
the Secretary deems necessary or appropriate to carry out his respon-
sibilities under this section.
(3) For the purpose of any hearing or investigation related to deter-
minations or the enforcement of the provisions of this section, the pro-
visions of sections 9 and 10 (relating to the attendance of witnesses
and the production of books, papers, and documents) of the Federal
Trade Commission Act of September 16, 1914, as amended (U.S.C.,
title 15, secs. 49 and 50.), are hereby made applicable to the jurisdic-
tion, powers, and duties of the Secretary of Labor.
(e) There is hereby authorized to be appropriated to the Secretary
the sum of $2,000,000 which the Secretary shall immediately deposit
into the fund. Upon deposit in the fund such moneys shall be treated
as the property of such fund. This sum, without additional payments
for interest, shall be repaid from the money or property belonging to
the fund on a schedule of repayment set by the Secretary: Provided,
That full repayment must be made no later than five years from the
date of deposit into the fund. Each such repayment, as made, shall be
covered into the Treasury of the United States as miscellaneous
receipts.
(f) The Treasurer of the United States shall deposit any moneys
paid into such fund into such depository banks as the Secretary may
designate and may invest any portion of the funds which, in the opinion
of the Secretary, is not needed for current requirements, in bonds or
notes of the United States or of any Federal land bank.
(g) Neither the United States nor the Secretary shall be liable in
respect of payments authorized under section 8 in an amount greater
than the money or property deposited in or belonging to such fund.'
(h) The Comptroller General of the United States shall audit
the account for such fund, but the action of the Secretary in
making payments from such fund shall be final and not subject to re-
view, and the Comptroller General is authorized and directed to allow
credit in the accounts of any disbursing officer of the Secretary for
payments made from such fund authorized by the Secretary.
(i) All civil penalties provided for in this Act shall be collected
by civil suit brought by the Secretary.
(j) The proceeds of this fund shall b.e available for payments:
(1) Pursuant to section 10 and 11 with respect to initial and
subsequent annual adjustments in compensation for total perma-
nent disability or death which occurred prior to the effective date
of this subsection.
(2) Under section 8(f) and (g), under section 18(b), and under
section 39(c).
PAGENO="0125"
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36
(8) To repay the suni~i deposited in the fund pursuant to sub-
section (d).
(4) To defray the expense of making examiinations as proDided
in section 7.
(k) At the close of each fl~cal year the Secreta~ry shall subnvit to. the
Congress a complete au,dit of the fund.
ADMINISTRATION FUND
SEC. 45. (a) There is established in the Treasury of the United
States a special fund for the purpose of providing for the payment of
all expenses in respect of the administration of this Act. Such fund
shall be administered by the Secretary. The Treasurer of the United
States shall be the custodian of such fund, and all moneys and securi-
ties in such fund shall be held in trust by such Treasurer and shall not
be the money or property of the United States.
(b) The provisions of sbdivisions (b), (d), and (f) of section 44
shall be applicable to the fund established.
APPROPRIATION
SEC. 46. There is hereby authorized to be appropriated, out of any
money in the Treasury not otherwise appropriated, the sum of
$250,000, which shall be covered into the administration fund estab-
lished in section 45 and shall be available for expenses incurred in the
administration of this Act during the remainder of the fiscal year
ending June 30, 1927, and during the fiscal year ending June 30, 1928.
All unexpended balances of any appropriations made under authority
of this section, remaining in such fund on July 1, 1928, shall be cov-
ered into the Treasury of the United States as miscellaneous receipts.
AVAILABILITY OF APPROPRIATIONS
SEC. 47. The expenses incurred for salaries and contingent expenses
by the Secretary in the administration (1) of the Act entitled "An
Act to provide compensation for employees of the United States suf-
fering injuries while in the performance of their duties, and for other
purposes," approved September 7, 1916, as amended, and (2) of this
Act, may be paid from the appropriations for salaries and contingent
expenses for the administration of such Act of September 7, 1916, and
from the fund established in section 45 of this Act, in such propor-
tion as the Secretary, with the approval of the Director of the Bureau
of the Budget, determines to be fairly attributable to the cost of ad-
ministration of the respective Act, but the total amount paid from
such appropriation and such fund in any fiscal year on account of the
administration of such Act of September 7, 1916, shall not exceed the
amounts appropriated for ~salaries and contingent expenses for the
administration of such Act for such year.
LAWS INAPPLICABLE
SEC. 48. Nothing in sections 4283, 4284, 4285, 4286~, or 4289 of the
Revised Statutes, as amended, nor in section 18 of the Act entitled
PAGENO="0126"
808
3,7
"An act to remove certain burdens on the American merchant marine
and encourage the American foreign carrying trade and for other pur-
poses," approved June 26, 1884, as amended, shall be held to limit the
amount for which recovery may be had (1) in any suit at law or in
admiralty where an employer has failed to secure compensation as
required by this Act, or (2) in any proceeding for compensation, any
addition to compensation, or any civil penalty.
DISCRIMINATION AGAINST EMPLOYEES WHO BRING PROCEEDINGS
Ssc. 49. It shall be unlawful for any employer or his duly authorized
agent to discharge or in any other manner discriminate against an em-
ployee as to his employment because such employee has claimed or
attempted to claim compensation from such employer, or because he
has testified or is about to testify in a proceeding under this Act. Any
employer who violates this section shall be liable to a penalty of not
less than $100 or more than $1,000, as may be determined by the deputy
commissioner. All suck penalties shall be paid to the deputy commis-
sioner for deposit in the special fund as described in section 44, and if
not paid may be recovered in a civil action brougkt~in the appropriate
United States district court. Any employee so discriminated against
shall be restored to his employment and shall be compensated by his
employer for any loss of wages arising out of suck discrimination:
Provided, That if such employee shall cease to be qualified to perform
the duties of his employment, he shall not be entitled to such restóra-
tion and compensation. The employer alone and not his carrier shall be
liable for suck penalties and payments. Any provision in an insurance
policy undertaking to relieve the employer from liability for such
penalties and payments shall be void.
EFFECT OF UNCONSTITUTIONALITY
SEC. (50) If any part of this Act is adjudged unconstitutional by the
courts, and such adjudication has the effect of invalidating any pay-
ment of compensation under this Act, the period intervening between
the time the injury was sustained and the time of such adjudication
shall not be computed as a part of the time prescribed by law for
the commencement of any action against the employer in respect of
such injury; but the amount of any compensation paid under this Act
on account of such injury shall be deducted from the amount of dam-
ages awarded in such action in respect of such injury.
SEPARABILITY PROVISION
SEC. (Si) If any provision of this Act is declared unconstitu-
tional or the applicability thereof to any person or circumstances is
held invalid, the validity of the remainder of the Act and the applica-
bility of such provision to other persons and circumstances shall not be
affected thereby.
EFFECTIVE DATE
SEC. (5~) Sections 39 to 51, inclusive, shall become effective upon the
passage of this Act, and the remainder of this Act shall become eflec-
tive on July 1, 1927.
PAGENO="0127"
809
DISTRICT OF COLUMBIA WORKMEN'S
COMPENSATION ACT
[PUBLIC-No. 419-7&rii CoNuRBss, PASSED M~vr 17, 1928,
AS Anr~r~ED]
[S. 356~]
An Act To provide compensation for disablUty or death resulting from injury to
employees In certain employments In the District of Columbia, and for other
purposes.
Be it encwted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. LONGSHOREMEN~S AND HARBOR WORKERS' COMPENSATION ACT
MADE APPLICABLE TO DISTRICT OF COLUMBIA
The provisions of the Longshoremen's and Harbor Workers' Com-
pensation Act, including all amendments that may hereafter be made
thereto, shall apply in respect to the injury or death of an employee
or an employer carrying on any employment in the District of Co-
lumbia, irrespective of the place where the injury or death occurs;
except that in applying such provisions the term "employer" shall be
held to mean every person carrying on any employment in the District
of Columbia, and the term "employee" shall be held to mean every
employee of any such person.
SECTION 2. EXCEPTIONS
This Act shall not apply in respect to the injury or death of (1) a
master or member of a crew of any vessel; (2) an employee of a com-
mon carrier by railroad when engaged in interstate or foreign com-
merce or commerce solely within the District of Columbia; (3) an
employee subject to the provisions of the Federal Employees' Com-
pensation Act, as amended (Title 5~ U.S.C., 751); and (4) an em-
ployee engaged in agriculture, domestic service, or any employment
that is casual and not in the usual course of the trade, business, occu-
pation, or profession of the employer; and (5) any seQ~etary, stenog-
(39)
PAGENO="0128"
810
40
rapher, or ot1~er person performing any services in the office of any
Member of Congress or under the direction, employment, or at the
request of any Member of Congress, within the scope of the duties
performed by secretaries, stenographers, or such employees of Mem'
bers of Congress.
PAGENO="0129"
811
DEFENSE BASE ACT
[PVBLIO-No. 208-77!ra CONGRESS, PASSED AUGUST 16, 1941,
AS AMENDED]
8.1642
An Act To provide compensation for disability or death to persons employed
at military, air, and naval bases outside the United States.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
/ SECTION 1. COMPENSATION AUTHORIZED
(a) Places of employment.
Except as herein modified, the provisions of the Longshoremen's
and Harbor Workers' Compensation Act, as amended, shall apply in
respect to the injury or death of any employee engaged in any em-
ployment-
(1) at any military, air, or naval base acquired after January 1,
1940, by the United States from any foreign government; or
(2) upon any lands occupied or used by the United States for
military or naval purposes in any Territory or possession outside
the continental United States (including the United States Naval
Operating Base, Guantanamo Bay, Cuba; and the Canal Zone; or
(3) upon any public work in any Territory or possession out-
side the continental United States (including the United States
Naval Operating Base, Guantanamo Bay, Cuba; and the Canal
Zone), if such employee is engaged in employment at such place
under the contract of a contractor (or any subcontractor or sub-
ordinate subcontractor with respect to the contract of such con-
tractor) with the United States; but nothing in this paragraph
shall be construed to apply to any employee of such a contractor
or subcontractor who is engaged exclusively in furnishing materials
or supplies under his contract;
(4) under a contract entered into with the United States or
any executive department, independent establishment, or agency
thereof (including any corporate instrumentality of the United
States), or any subcontract, or subordinate contract with respect to
such contract, where such contract is to be performed outside the
continental United States and at places not within the areas de-
scribed in subparagraphs (1), (2), and (3) of this subdivision, for
(41)
75-623 0 - 74 - pt. 3 - 9
PAGENO="0130"
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42
the purpose of engaging in public work, and every such contract
shall contain provisions requiring that the contractor (and subcon-
tractor or subordinate contractor with respect to such contract)
(1) shall, before commencing performance of such contract, pro-
vide for securing to or on behalf of employees engaged in such public
work under such contract the payment of compensation and other
benefits under the provisions of this Act, and (2) shall maintain
in full force and effect during the term of such contract, subcon-
tract, or subordinate contract, or while employees are engaged in
work performed thereunder, the said security for the payment of
such compensation and benefits, but nothing in this paragraph shall
be construed to apply to any employee of such contractor or sub-
contractor who is engaged exclusively in furnishing materials or
supplies under his contract;
(5) under a contract approved and financed by the United
States or any executive department, independent establishment,
or agency thereof (including any corporate instrumentality of the
United States), or any subcontract or subordinate contract with
respect to such contract, where such contract is to be performed
outside the continental United States, under the Mutual Security
Act of 1954, as amended (other than title II of chapter II thereof
unless the Secretary of Labor, upon the recommendation of the head
of any department or other agency of the United States, determines
a contract financed under a successor provision of any successor Act
should be covered by this section), and not otherwise within the
coverage of this section, and every such contract shall contain pro-
visions requiring that the contractor (and subcontractor or subordi-
nate contractor with respect to such contract) (A) shall, before
commencing performance of such contract, provide for securing to
or on behalf of employees engaged in work under such contract the
payment of compensation and other benefits under the provisions of
this Act, and (B) shall maintain in full force and effect during the
term of such contract, subcontract, or subordinate contract, or while
employees are engaged in work performed thereunder, the said se-
curity for the payment of such compensation and benefits, but
nothing in this paragraph shall be construed to apply to any em-
ployee of such contractor or subcontractor who is engaged ex-
clusively in furnishing materials or supplies under his contract;
(6) outside the continental United States by an American
employer providing welfare or similar services for the benefit of
the Armed Forces pursuant to appropriate authorization by the
Secretary of Defense;
PAGENO="0131"
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43
irrespective of the place where the injury or death occurs, and shall
include any injury or death occurring to any such employee during
transportation to or from his place of employment, where the employer
or the United States provides the transportation or the cost thereof.
(b) Definitions.
As used in this section-
(1) the term "public work" means any fixed improvement or any.
project, whether or not fixed, involving construction, alteration,
removal or repair for the public use of the United States or its allies,
including but not limited to projects or operations under service con-
tracts and projects in connection with the national defense or with
war activities, dredging, harbor improvements, dams, roadways, and
housing, as well as preparatory and ancillary work in connection
therewith at the site or on the projept;
(2) the term "allies" means any nation with which the United
States is engaged in a common military effort or with which the
United States has entered into a common defensive military alliance;
(3) the term "war activities" includes activities directly relating
to military operations;
(4) *the term "continental United States" means the States and the
District of Columbia.
(c) Liability as exclusive.
The liability of an employer, contractor (or any subcontractor or
subordinate subcontractor with respect to the contract of such contrac-
tor) under this Act shall be exclusive and in place of all other liability
of such employer, contractor, subcontractor, or subordinate contractor
to his employees (and their dependents) coming within the purview
of this Act, under the workmen's compensation law of any State;
Territory, or other jurisdiction, irrespective of the place where the
contract of hire of any such employee may have been made or entered
into.
(d) Definition of contractor.
As used in this section, the term "contractor" means any individual,
partnership, corporation, or association, and includes any trustee,
receiver, assignee, successor, or personal' representative thereof, and
the rights, obligations, liability, and duties of the employer under
such Longshoremen's and Harbor Workers' Compensation Act shall
be applicable to such contractor.
(e) Contracts within section; waiver of application of section.
The liability under this Act of a contractor, subcontractor, or sub-
ordinate contractor engaged in public work under subparagraphs
(3) and (4), subdivision (a) of this section, and the conditions set
forth therein, shall become applicable to contracts and subcontracts
PAGENO="0132"
814
44
heretofore entered into but not completed at the time of the approval
of this Act, and the liability under this Act of a contractor, subcon-
tractor, or subordinate contractor engaged in performance of con-
tracts, subcontracts, or subordinate contracts specified in subparagraph
(5), subdivision (a) of this section, and the conditions set forth
therein, shall hereafter be applicable to the remaining terms of such
contracts, subcontracts, and subordinate contracts entered into prior
to but not completed on the date of enactment of any successor Act
to the Mutual Security Act of 1954, as amended, and contracting
officers of the Tjnited States are authorized to make such modific&-
tions and amendments of existing contracts as may be necessary to
bring such contracts into conformity with the provisions of this Act.
No right shall arise in any employee or his dependent under sub-
paragraphs (3) and (4) of subdivision (a) of this section, prior to
two months after the approval of this Act. Upon the recommenda-
tion of the head of any department or other agency of the United
States, the Secretary of Labor, in the exercise of his discretion, may
waive the application of this section with respect to any contract,
subcontract, or subordinate contract, work location under such con-
tracts, or classification of employees. Upon recommendation of
any employer referred to in paragraph (6) of subsection (a) of this
section, the Secretary of Labor may waive the application of this
section to any employee or class of employees of such employer, or
to any place of employment of such an employee or class of
employees.
(f) Liability to prisoners of war and protected persons.
The liability under this Act of a contractor, subcontractor, or sub-
ordinate contractor engaged in public work under paragraphs (1),.
(2), (3), and (4), of subsection (a) of this section or in any work
under subparagraph (5) of subsection (a) of this section does not
apply with respect to any person who is a prisoner of war or a pro-
tected person under the Geneva Conventions of 1949 and who is de-
tained or utilized by the United States.
SECTION 2. COMPUTATION or BENEFITS: APPLICAT[ON TO ALIENS AND
NONNATIONALS
(a) The minimum limit on weekly compensation for disability,
established by section 6(b), and the minimum limit on the average
weekly wages on which death benefits are to be computed, established
by section 9(e) of the Longshoremen's and Harbor Workers' Com-
pensation Act, shall not apply in computing compensation and death
benefits under this Act.
(b) Compensation for permanent total or permanent partial dis-
PAGENO="0133"
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45
ability under section 8(c) (21) of the Longshoremen's and Harbor
Workers' Compensation Act, or for death under this Act to aliens and
nonnationals of the United States not residents of the United States
or Canada shall be in the same amount as provided for residents, ex-
cept that dependents in any foreign country shall be limited to sur-
viving wife and child or children, or if there be no surviving wife or
child or children, to surviving father or mother whon~ the employee
has supported, either wholly or in part, for the period of one year
immediately prior to the date of the injury, and except that the Secre-
tary of Labor may, at his option or upon the application of the insur-
ance carrier shall, commute all future installments of compensation
to be paid to such aliens or nonationals of the United States by paying
or causing to be paid to them one-half of the commuted amount of
such future installments of compensation as determined by the
Secretary.
SECTION 3. COMTENSATION DISTRICTS: JUDICIAL PROCEEDINGS
(a) The Secretary of Labor is authorized to extend compensation
districts established under the Longshoremen's and Harbor Workers'
Compensation Act, or to establish new compensation districts, to in-
clude any area to which this Act applies; and to assign to each such
district one or more deputy commissioners, as the Secretary may deem
necessary.
(b) Judicial proceedings provided under sections 18 and 21 of the
Longshoremen's and Harbor Workers' Compensation Act in respect
to a compensation order made pursuant to this Act shall be instituted
in the United States district court of the judicial district wherein is
located the office of the deputy commissioner whose compensation
order is involved if his office is located in a judicial district, and if
not so located, such judicial proceedings shall be instituted in the
judicial district nearest the base at which the injury or death occurs.
SECTION 4. PERSONS EXCLUDED FROM BENEFITS
This Act shall not apply in respect to the injury or death of (1) an
employee subject to the provisions of the Federal Employees' Com-
pensation Act; (2) an employee engaged in agriculture, domestic serv-
ice, or any employment t.hat is casual and not in the usual course of
the trade, business, or profession of the employer; and (3) a master
or member of a crew of any vessel.
SECTION 5. THIS ACT MA~ BE CITED AS THE `~DEFENSE BASE ACT"
PAGENO="0134"
816
WAR HAZARDS COMPENSATION ACT
[Pum~ic-No. 784-77TH CONGRESS, PASSED DECEMBER 2, 1942,
AS AMENDED~
[S. 2412]
An Act To provide compensation for the injury, disability, death, or enemy
detention of employees of contractors with the United States, and for other
purposes.
Be it enacted by the Senate an.d Howse of Representatives oft/ic
United States of An~erica in Congress assembled,
Tn'i~ I-COMPENSATION FOR INJTJRY, DEATH, OR DETENTION OF EM-
PLOYEES OF CONTRACTORS WITH THE UNITED STATES OUTSIDE THE
UNITED STATES
SECTION 101. INJURY OR DEATH: DETENTION: LIMITATION OF BENEFITS:
EXCLUSION
(a) Injury or death.
In case of injury or death resulting from injury-
(1) to any person employed by a contractor with the United
States, if such person is an employee specified in the Act of August
16, 1941 (Defense Base Act), as amended, and no compensation is
payable with respect to such injury or death under such Act; or
(2) to any person engaged by the United States under a contract
for his personal services outside the continental United States; or
(3) to any person employed outside the continental United States
as a civilian employee paid from nonappropriated funds admin-
istered by the Army and Air Force Exchange Service, Army and
Air Force Motion Picture Service, Navy Ship's Store Ashore,
Navy exchanges, Marine Corps exchanges, officers' and noncom-
missioned officers' open messes, enlisted men's clubs, service clubs,
special service activities, or any other instrumentality of the United
States under the jurisdiction of the Department of Defense and
conducted for the mental, physical, and morale improvement of
personnel of the Department of Defense and their dependents; or
(4) to any person who is an employee specified in section 1(a) (5)
of the Defense Base Act, as amended, if no compensation is payable
with respect to such injury or death under such Act, or to any per-
son engaged under a contract for his personal services outside the
United States approved and financed by the United States under
(47)
PAGENO="0135"
817
48
the Mutual Security Act of 1954, as amended (other than title II of
chapter II thereof unless the Secretary of Labor, upon the recom-
mendation of the head of any department or other agency of the
United States Government, determines a contract financed under a
successor provision of any successor Act should be covered by this
section): Provided, That in cases where the United States is not
a formal party to contracts approved and financed under the
Mutual Security Act of 1954, as amended, the Secretary, upon
the recommendation of the head of any department or agency
of the United States, may, in the exercise of his discretion, waive the
application of the provisions of this subparagraph with respect to
any such contracts, subcontracts, or subordinate contracts, work loca-
tion under such contracts, subcontracts, or subordinate contracts, or
classification of employees; or
(5) to any person employed or otherwise engaged for personal
services outside the continental United States by an American
employer providing welfare or similar services for the benefit of
the Armed Forces pursuant to appropriate authorization by the
Secretary of Defense;
and such injury proximately results from a war-risk hazard, whether
or not such person then actually was engaged in the course of his
employment, the provisions of the Act entitled "Federal Employees'
Compensation Act", approved September 7, 1916 (5 U.S.C., ch. 15),
as amended, and as modified by this Act, shall apply with respect
thereto in the same manner and to the same extent as if the person so
employed were a civil employee of the United States and were injured
while in the performance of his duty, and any compensation found
to be due shall be paid from the compensation fund established
pursuant to section 35 of said Federal Employees' Compensation Act,
as amended. This subsection shall not be construed to include any
person who would otherwise come within the purview of such Federal
Employees' Compensation Act, as amended.
(b) Detention.
(1) Any person specified in subsection (a) of this section who-
(A) is found to be missing from his place of employment, wheth-
er or not such person then actually was engaged in the course of
his employment, under circumstances supporting an inference that
his absence is due to the belligerent action of a hostile force or
person, or -
(B) is known to have been taken by a hostile force or person as
a prisoner, hostage, or otherwise, or
PAGENO="0136"
818
4~
(C) is not returned to his home or to the place where he was
employed by reason of the failure of the United States or its con-
tractor to furnish transportation,
until such time as he is returned to his home, to the place of his em-
ployment, or is able to be returned to the jurisdiction of the United
States, shall, under such regulations as the Secretary may prescribe,
be regarded solely for the purposes of this subsection as totally dis-
abled, and the same benefits as are provided for such disability under
this Act shall be credited to his account and be payable to him for
the period of such absence or until his death is in fact established or
can be legally presumed to have occurred: Provided, That if such
person has dependents residing in the United States or its Territories
or possessions (including the United States Naval Operating Base,
Guantanamo Bay, Cuba; and the Canal Zone), the Secretary
during the period of such absence may disburse a part of such
compensation, accruing for such total disability, to such depend-
ents, which shall be equal to the monthly benefits otherwise
payable for death under this Act, and the balance of such compensa-
tion for total disability shall accrue and be payable to such person
upon his return from such absence. Any payment made pursuant to
this subsection shall not in any case be included in computing the
maximum aggregate or total compensation payable for disability or
death, as provided in section 102(a) : Provided further, That no such
payment to such person or his dependent, on account of such absence,
shall be made during any period such person or dependent, respec-
tively, has received, or may be entitled to receive, any other payment
from the United States, either directly or indirectly, because of such
absence, unless such person or dependent refunds or renounces such
other benefit or payment for the period claimed.
Benefits found to be due under this subsection shall be paid from
the compensation fund established pursuant to section 35 of the Fed-
eral Employees' Compensation Act, as amended: Provided, That
the determination of dependents, dependency, and amounts of pay-
ments to dependents shall be made in the manner specified in the
Federal Employees' Compensation Act: Provided further, That claim
for such detention benefits shall be filed in accordance with and sub-
ject to the limitation provisions of such Act, as modified by section
106(c) of this Act: And provided further, That except in cases of
fraud or willful misrepresentation, the Secretary may waive recovery
of money erroneously paid under this subdivision whenever he finds
that such recovery would be impracticable or would cause hardship
to the beneficiary affected: And provided further, That where such
person is found to be missing from his place of employment, whether
PAGENO="0137"
819
50
or not such person then actually was engaged in the course of his
employment~, under circumstances supporting an inference that his
absence is due to the belligerent action of a hostile force or person or
is imown to have b-eon taken by a hostile force or person as a prisoner,
hostage, or otherwise, the amount of benefits to be credited to the
account of such person under this subsection, and for the purposes of
this subsection only, shall be 100 per centum of the average weekly
wages of such person, except that in computing such benefits such
average weekly wages (a) shall not exceed the average weekly wages
paid to civilian employees of the United States in the same or most
similar occupation in the area nearest to the place of employment
where such person was last employed, and (b) shall not exceed the
average weekly wages of such absent person at the time such absence
began; and 70 per centum of such average weekly wage so determined
shall be disbursed to the dependent or dependents of such persons,
irrespective of the limitations of section 9 of the Longshoremen's and
Harbor Workers' Compensation Act, as amended, but should there
be more than one such dependent, the distribution of such 70 per
centum shall be proportionate to the percentages allowed for depend-
ents by section 9 of the Longshoremen's and Harbor Workers' Com-
pensation Act, and if such maimer of disbursement in any case would
result in injustice or. excessive allowance for a dependent, the Secretary
may, in his discretion, modify such percentage or apportionment to
meet the requirements of the case; and in such cases benefits for de-
tention shall accrue from January 1, 1942, unless the beginning of
absence occurred upon a later date in which event benefits shall accrue
from such later date, and for the period of such absence shall be 100
per centum of the average weekly wages, determined as herein pro-
vided: And provided further, That compensation for disability under
this subsection (except under allowance for scheduled losses of mem-
bers or functions of the body, withiii the purview of section 102(a) of
this Act) shall not be paid in any case in respect to any period of time
during which benefits for detention may accrue under this subsection
in the same case, and should a person entitled to benefits for detention
also be entitled to workmen's compensation or similar benefits under
any other law, agreement, or plan (except allowances for scheduled
losses of members or functions of the body), where such other benefits
are paid or to be paid directly or indirectly by the United States, the
amount thereof accruing as to the period of absence shall be taken into
account and the benefits credited to the account of the detained person
reduced accordingly: And provided further, That where through mis-
take of fact, absence of proof of death, or error through lack of ade-
quate informtthon or otherwise, payments as for detention have in any
PAGENO="0138"
820
51
case been erroneously made or credited, any resulting overpayment of
detention benefits (the recovery of which is not waived as otherwise
provided for in this section) shall be recouped by the Secretary in
such manner as he shall determine from any unpaid accruals to the
account of the detained person, and if such accruals are insufficient
for such purpose, then from any allowance of compensation for injury
or death in the same case (whether under this Act or under any other
law, agreements, or plan, if the United States pays, or is obligated to
pay, such benefits, directly or indirectly), but only to the extent of the
amount of such compensation benefits payable for the particular
period of such overpayment, and in cases of erroneous payments of
compensation for injury or death, made through mistake of fact,
whether under this Act or under any other law, agreement, or plan
(if the United States is obligated to pay such compensation, directly
or indirectly), the Secretary is authorized to recoup from any unpaid
benefits for detention, the amount of any overpayment thus arising;
and any amounts recovered under this section shall be covered into
such compensation fund, and for the foregoing purposes the Secre-
tary shall have a right of lien, intervention, and recovery in any
claim or proceeding for compensation.
(2) Upon application by such person, or someone on his behalf,
the Secretary may, under such regulations as he may prescribe, fur-
nish transportation or the cost thereof (including reimbursement) to
any such person from the point where his release from custody by the
hostile force or person is effected, to his home, the place of his employ-
ment, or other place within the jurisdiction of the United States; but
no transportation, or the cost thereof, shall be furnished under this
paragraph where such person is furnished such transportation, or the
cost thereof, under any agreement with his employer or under any
other provision of law.
(3) In the case of death of any such person, if his death occurred
away from his home, the body of such person shall, in the discretion
of the Secretary, and if so desired by his next of kin, near relative,
or legal representative, be embalmed and transported in a hermeti-
cally sealed casket or other appropriate container to the home of such
person or to such other place as may be designated by such next of
kin, near relative, or legal representative. No expense shall be in-
curred under this paragraph by the Secretary in any case where death
takes place after repatriation, unless such death proximately results
from a war-risk hazard.
(4) Such benefits for detention, transportation expenses of repatri-
ated persons, and expenses of embalming, providing sealed or other
appropriate container, and transportation of the body, and attendants
PAGENO="0139"
821
52
(if required), as approved by the Secretary, shall be paid out of the
compensation fund established under section 35 of the Federal Em-
ployees' Compensation Act, as amended.
(c) Limitation of benefits to dependents in foreign countries.
Compensation for permanent total or permanent partial disability
or for death payable under this section to persons who are not citizens
of the United States and who are not residents of the United States
or Canada, shall be in the same amount as provided for residents;
except that dependents in any foreign country shall be limited to
surviving wife or husband and child or children, or if there be no sur-
viving wife or husband or child or children, to surviving father or
mother whom such person has supported, either wholly or in part, for
the period of one year immediately prior to the date of the injury;
and except that the Secretary, at his option, may commute all future
installments of compensation to be paid to such persons by paying to
them one-half of the commuted amount of such future installments of
compensation as determined by the Secretary.
(d) Exclusion.
The provisions of this section shall not apply in the case of any
person (1) whose residence is at or in the vicinity of the place of his
employment, and (2) who is not living there solely by virtue of the
exigencies of his employment, unless his injury or death resulting
from injury occurs or his detention begins while in the course of his
employment, or (3) who is a prisoner of war or a protected person
under the Geneva Conventions of 1949 and who is detained or utilized
by the United States.
SECTION 102. APPLICATION, OF LONGSHOREMEN'S AND HARBOR WORKER8~
COMPENSATION ACT
(a) In the administration of the provisions of the Federal Em-
ployees' Compensation Act, as amended, with respect to cases coming
within the purview of section 101 of this Act, the scale of compensa-
tion benefits and the provisions for determining the amount of com-
pensation and the payment thereof as provided in sections 8 and 9 of
the Longshoremen's and Harbor Workers' Compensation Act, ap-
proved March 4, 1927, as amended, so far as the provisions of said
sections can be applied under the terms and conditions set forth
therein, shall be payable in lieu of the benefits,' except medical bene-
fits, provided under the Federal Employees' Compensation Act, as
amended: Provided, That the total compensation payable under this
Act for injury or death shall in no event exceed the limitations upon
compensation as fixed in section 14(m) of the Longshoremen's and
Harbor Workers' Compensation Act as such section may from time
PAGENO="0140"
822
53
to time be amended except that the total compensation shall not be
less than that provided for in the original enactment of this Act.
(b) For the purpose of computing compensation with respect to
cases coming within the purview of section 101, the provisions of sec-
tions 6 and 10 of such Longshoremen's and Harbor Workers' Com-
pensation Act shall be applicable: Provided, That the minimum limit
on weekly compensation for disabality, established by section 6(b) of
the Longshoremen's and Harbor Workers' Compensation Act, and the
minimum limit on the average weekly wages on which death benefits
are to be computed, established by section 9(e) of such Longshore-
men's and Harbor Workers' Compensation Act, shall not apply in com-
puting compensation under this Act.
SECTION 103. DEFINITION
As used in this Act, the term "contractor with the United States"
includes any subcontractor or subordinate subcontractor with respect
to the contract of such contractor.
SECTION 104. REIMBURSEMENT
(a) Where any employer or his insurance carrier or compens~t-
tion fund pays or is required to pay benefits-
(1) to any person or fund on account of injury or death of any
person coming within the purview of this Act or sections 1-4 of the
Defense Base Act, if such injury or death arose from a war-risk
hazard, which are payable under any workmen's compensation law
of the United States or of any State, Territory, or possession of the
United States, or other jurisdiction; or
(2) to any person by reason of any agreement outstanding on
December 2, 1942, made in accordance with a contract between the
United States and any contractor therewith to pay benefits with re-
spect to the death of any employee of such contractor occurring under
circumstances not entitling such person to benefits under any work-
men's compensation law or to pay benefits with respect to the failure
of the United States or its contractor to furnish transportation upon
the completion of the employment of any employee of such contractor
to his home or to the place where he was employed; or
(3) to any person by reason of an agreement approved or author-
ized by the United States under which a contractor with the United
States has agreed to pay workmen's compensation benefits or benefits
in the nature of workmen's compensation benefits to an injured em-
ployee or his dependents on account of detention by a hostile force or
person or on account of injury or death arising from a war-risk haz-
ard; such employer, carrier, or fund shall be entitled to be reimbursed
PAGENO="0141"
823
54
for all benefits so paid or payable, including funeral and burial ex-
penses, medical, hospital, or other similar costs for treatment and care;
and reasonable and necessary claims expense in connection therewith.
Claim for such reimbursement shall be filed with the Secretary under
regulations promulgated by him, and such claims, or such part thereof
as may be allowed by the Secretary, shall be paid from the compensa-
tion fund established under section 35 of the Federal Employee's'
Compensation Act, as amended. The Secretary may, under such regu-
lations as he shall prescribe, pay such benefits, as they accrue and in
lieu of reimbursement, directly to any person entitled thereto, and the
insolvency of such employer, insurance carrier, or compensation fund
shall not affect the right of the beneficiaries of such benefits to receive
the compensation directly from the said compensation fund estab-
lished under section 35 of the Federal Employees' Compensation Act,
as amended. The Secretary may also, under such regulations as he
shall prescribe, use any private facilities, or such Government facili-
ties as may be available, for the treatment or care of any person
entitled thereto.
(b) No reimbursement shall be made under this Act in any case in
which the Secretary finds that the benefits paid or payable were on
account or injury, detention, or death which arose from a war-risk
hazard for which a premium (which included an additional charge
or loading for such hazard) was charged.
(c) The provisions of this section shall not apply with respect to
benefits on account of any injury or death occurring within any State.
SECTION 105. RECEIPT OF WORKMEN'S COMPENSATION BENEFITS
(a) No benefits shall be paid or furnished under the provisions of
this Act for injury or death to any person who recovers or receives
workmen's compensation benefits for the same injury or death under
any other law of the United States, or under the law of any State,
Territory, possession, foreign country, or other jurisdiction, or bene-
fits in the nature of workmen's compensation benefits payable under
an agreement approved or authorized by the United States pursuant
to which a contractor with the United States has undertaken to pro-
vide such benefits.
(b) The Secretary shall have a lien and a right of recovery, to the
extent of any payments made under this Act on account of injury or
death, against any compensation payable under any other workmen's
compensation law on account of the same injury or death; and any
amounts recovered under this subsection shall be covered into the
fund established under section 35 of the Federal Employees' Compen-
sation Act, as amended.
PAGENO="0142"
824
55
(c) Where any person specified in section 101 (a), or the dependent,
beneficiary, or allottee of such person, receives or claims wages, pay-
ments in lieu of wages, insurance benefits for disability or loss of life
(other than `workmen's compensation benefits), and the cost of such
wages, payments, or benefits is provided in whole or in part by the
United States, the amount of such wages, payments or benefits shall
be credited, in such manner as the Secretary shall determine, against
any payments to which any such person is entitled under this Act.
Where any person specified in section 101(a), or any dependent,
beneficiary, or allottee of such person, or the legal representative or
estate of any such entities after having obtained benefits under this
Act, seeks through any proceeding, claim, or otherwise, brought or
maintained against the employer, the United States, or other person,
to recover wages, payments in lieu of wages, or any sum claimed as
for services rendered, or for failure to furnish transportation, or for
liquidated or unliquidated damages under the employment contract,
or any other benefit, and the right in respect thereto is alleged to have
accrued during or as to any period of time in respect of which pay-
ments under this Act in such case have been made, and in like cases
where a recovery is made or allowed, the Secretary shall have the
right of intervention and a lien and right of recovery to the extent of
any payments paid and payable under this Act in such case, provided
the cost of such wages, payments in lieu of wages, or other such right,
may be directly or indirectly paid by the United States; and any
amounts recovered under this subsection shall be covered into the
fund established under section 35 of the Federal Employees' Com-
pensation Act.
(d) Where a national of a foreign government is entitled to bene-
fits on account of injury or death resulting from a war-risk hazard,
under the laws of his native country or any other foreign country,
the benefits of this Act shall not apply.
(e) If at the time a person sustains an injury coming within the
purview of this Act said person is receiving workmen's compensation
benefits on account of a prior accident or disease, said person shall not
be entitled to any benefits under this Act during the period covered
by such workmen's compensation benefits unless the injury from a
war-risk hazard increases his disability, and then only to the extent
such disability has been so increased.
SECTION 106. ADMINISTRATION
(a) The provisions of this Act shall be administered by the Secre-
tary of Labor, and the Secretary is authorized to make rules and
regulations for the administration thereof and to contract with insur-
PAGENO="0143"
825
56
ance carriers for the use of the service facilities of such carriers for
the purpose of facilitating administration.
(b) In administering the provisions of this Act the Secretary may
enter into agreements or cooperative working arrangments with other
agencies of the United States or of any State (including the District
of Columbia, Hawaii, Alaska, Puerto Rico, and the Virgin Islands)
or political subdivision thereof, and with other public agencies and
private persons, agencies, or institutions, within and outside the
United States, to utilize their services and facilities and to comrn
pensate them for such use. The Secretary may delegate to any officer
or employee, or to any agency, of the United States or of any State,
or of any political subdivision thereof, or Territory or possession
of the United States, such of his powers and duties as he finds neces-
sary for carrying out the purposes of this Act.
(c) The Secretary, in his discretion, may waive the limitation pro-
visions of such Federal Employees' Compensation Act, as amended,
with respect to notice of injury and filing of claims under this Act,
whenever the Secretary shall find that, because of circumstances be-
yond the control of an injured person or his beneficiary, compliance
with such provisions could not have been accomplished within the
time therein specified.
SECTION 107. EFFECTIVE DATE
This Act shall take effect as of December 7, 1941.
S TITLE TI-MISCELLANEOUS PRovIsIoNs
SECTION 201. DEFINITIONS
When used in this Act-
(a) The term "Secretary" means the Secretary of Labor.
(b) The term "war-risk hazard" means any hazard arising during
a war in which the United States is engaged; during an armed con-
ifict in which the United States is engaged, whether or not war has
been declared; or during a war or armed conflict between military
forces of any origin, occurring within any country in which a per-
son covered by this Act is serving; from-
(1) the discharge of any missile (including liquids and gas) or the
use of any weapon, explosive, or Other noxious thing by a hostile force
or person or in combating an attack or an imagined attack by a hos-
tile force or person; or
(2) action of a hostile force or person, including rebellion or in-
surrection against the United States or any of its allies; or
(3) the discharge or explosion of munitions intended for use in
connection with a war or armed conflict with a hostile force or per-
PAGENO="0144"
826
57
son as defined herein (except with respect to employees of a manufac-
turer, processor, or transporter of munitions during the manufacture,
processing, or transporting thereof, or while stored on the premises
of the manufacturer, processor, or transporter) ; or
(4) the collision of vessels in convoy or the operation of vessels
or aircraft without running lights or without other customary peace-
time aids to navigation; or
(5) the operation of vessels or aircraft in a zone of hostilities or
engaged in war activities.
(c) The term "hostile force or person" means any nation, any sub-
ject of a foreign nation, or any other person serving a foreign nation
(1) engaged in a war against the United States or any of its allies,
(2) engaged in armed conflict, whether or not war has been declared,
against the United States or any of its allies, or (3) engaged in a
war or armed conflict between military forces of any origin in any
country in which a person covered by this Act is serving.
(d) The term "allies" means any nation with which the United
States is engaged in a common military effort or with which the
United States has entered into a common defensive military alliance.
(e) The term "war activities" includes activities directly relating
to military operations.
(f) The term "continental United States" means the States and
the District of Columbia.
SECTION 202. DISQUALIFICATION FROM BENEFTIS
No person convicted in a court of. competent jurisdiction of any
subversive act against the United States or any of its allies, com-
mitted after the declaration by the President on May 27, 1941, of the
national emergency, shall be entitled to compensation or other benefits
under title I, nor shall any compensation be payable with respect to
his death or detention under said title, and upon indictment or the
filing of an information charging the commission of any such sub-
versive act, all such compensation or other benefits shall be suspended
and remain suspended until acquittal or withdrawal of such charge,
but upon conviction thereof or upon death occurring prior tO final
disposition thereof, all such payments and all benefits under said title
shall be forfeited and terminated. If the charge is withdrawn, or
there is an acquittal, all such compensation withheld shall be paid to
the person or persons entitled thereto.
SECTION 203. FRAUD: PENALTiES
Whoever, for the purpose of causing an increase in any payment
authorized to be made under this Act, or for the purpose of causing
PAGENO="0145"
827
58
any payment to be made where no payment is authorized hereunder,
shall knowingly make or cause to be made, or aid or abet in the making
of any false statement or representation of a material fact in any
application for any payment under title I, or knowingly make or
cause to be made, or aid or abet in the making of any false statement,
representation, affidavit, or document in connection with such an
application, or claim, shall be guilty of a misdemeanor and upon con-
viction thereof shall be fined not more than $1,000 or imprisoned for
not more than one year, or both.
SECTION 204. LEGAL SERVICES
No claim for legal services or for any other services rendered in
respect of a claim or award for compensation under title I of this Act
to or on account of any person shall be valid unless approved by the
Secretary; and any claim so approved shall, in the manner and to the
extent fixed by the said Secretary, be paid out of the compensation
payable to the claimant; and any person who receives any fee, other
consideration, or any gratuity on account of services so rendered,
unless such consideration or gratuity is so approved, or who solicits
employment for another person or for himself in respect of any claim
or award for compensation under title I shall be guilty of a misde-
meanor and upon conviction thereof shall, for each offense, be fined
not more than $1,000 or imprisoned not more than one year, or both.
SECTION 205. FINALITY OF SECRETARY'S DECISIONS
The action of the Secretary in allowing or denying any payment
under title I shall be final and conclusive on all questions of law and
fact and not subject to review by any other official of the United
States or by any court by mandamus or otherwise, and the (Jomp-
troller General is authorized and directed to allow credit in the
accounts of any certifying or disbursing officer for payments in ac-
cordanc~e with such action.
SECTION 206. PRESUMPTION OF DEATH OR DETENTION
A determination that an individual is dead or a determination that
he has been detained by a hostile force or person may be made on the
basis of evidence that he has disappeared under circumstances such
as to make such death or detention appear probable.
SECTION 207. ASSIGNMENT OF BENEFITS; EXECUTION, LEVY, ETC., AGAINST
BENEFITS
The right of any person to any benefit under title I shall not be
transferable or assignable at law or in equity except to the United
75-623 0 - 74 - pt. 3 - 10
PAGENO="0146"
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59
States, and none of the moneys paid or payable (except money paid
hereunder as reimbursement for funeral expenses or as reimbursement
with respect to payments of workmen's compensation or in the nature
of workmen's compensation benefits), or rights existing under such
title, shall be subject to execution, levy, attachment, garnishment, or
other legal process or to the operation of any bankruptcy or insolvency
law.
S&~TION 208. TITLES I AND II OF THIS ACT MAY BE CITED AS THE ~~WAR
HAZARDS COMPENSATION ACT"
PAGENO="0147"
829
OUTER CONTINENTAL SHELF LANDS ACT
[Pu~io-No. 212-83RD CONGRESS, PASSED AUGUST 7, 1953]
[ER. 5134]
An Act To provide among other things that the Longshoremen's and Harbor
Workers' Compensation Act be extended to employees working on the Outer
Continental Shelf in the exploration and the development of natural resources.
The pertinent parts of the law are quoted below, 43 United States
Code, section 1333, subsection (b) and (c):
"(b) The United States district courts shall have original jurisdic-
tion of cases and controversies arising out of or in connection with any
operations conducted on the outer Continental Shelf for the purpose
of exploring for, developing, removing or transporting by pipeline the
natural resources, or involving rights to the natural resources of the
subsoil and seabed of the outer Continental Shelf, and proceedings
with respect to any such case or controversy may be instituted in the
judicial district in which any defendant resides or may be found,
or in the judicial district of the adjacent State nearest the place where
the cause of action arose.
"(c) With respect to disability or death of an employee resulting
from any injury occurring as the result of operations described in
subsection (b) of this section, compensation shall be payable under
the provisions of the Longshoremen's and Harbor Workers' Compen-
sation Act. For the purposes of the extension of the provisions of the
Longshoremen's and Harbor Workers' Compensation Act under this
section-
"(1) the term `employee' does not include a master or member of
a crew of any vessel, or an officer or employee of the United States or
any agency thereof or of any State or foreign government, or of any
political subdivision thereof;
"(2) the term `employer' means an employer any of whose
employees are employed in such operations; and
"(3) the term `United States' when used in a geographical sense
includes the outer Continental Shelf and artificial islands and fixed
structures thereon."
(61)
PAGENO="0148"
830
62
DEFINITIONS
The term "outer Continental Shelf" is defined in the Act, section
1331(a), as follows:
"(a) The term `outer Continental Shelf' means all submerged
lands lying seaward and outside of the area of lands beneath navi-
gable waters as defined in section 1301 of this title, and of which the
subsoil and seabed appertain to the United States and are subject to
its jurisdiction and control";
Section 1301 of the "Submerged Lands Act" defines "lands beneath
navigable waters" as follows:
"When used in this chapter-
"(a) The term `lands beneath navigable waters' means-
"(1) all lands within the boundaries of each of the respective
States which are covered by non-tidal waters that were navigable
under the laws of the United States at the time such State became
a member of the Union, or acquired sovereignty over such lands and
waters thereafter, up to the ordinary high water mark as heretofore
or hereafter modified by accretion, erosion, and reliction;
"(2) all lands permanently or periodically covered by tidal waters
up to but not above the line of mean high tide and seaward to a line
three geographical miles distant from the coast line of each such State
and to the boundary line of each such State where in any case such
boundary as it existed at the time such State became a member of
the Union, or as heretofore approved by Congress, extends seaward
(or into the Gulf of Mexico) beyond three geographical miles, and
"(3) all filled in, made, or reclaimed lands which formerly were
lands beneath navigable waters, as hereinabove defined;
"(b) The term `boundaries' includes the seaward boundaries of a
State or its boundaries in the Gulf of Mexico or any of the Great
Lakes as they existed at the time such State became a member of the
Union, or as heretofore approved by the Congress, or as extended or
confirmed pursuant to section 1312 of this title but in no event shall
the term `boundaries' or the term `lands beneath navigable waters' be
interpreted as extending from the coast line more than three geo-
graphical miles into the Atlantic Ocean or the Pacific Ocean, or more
than three marine leagues into the Gulf of Mexico;
"(c) The term `coast line' means the line of ordinary low water
along that portion of the coast which is in direct contact with the
open sea and the line marking the seaward limit of inland
waters; .
PAGENO="0149"
831
NONAPPROPRIATED FUND. INSTRUMENTALITIES ACT
[PtJBLIc-No. 397-82ND CONGRESS, PASSED Ju~ 19, 1952,
AS An~n~u]
[S. 1828J
An Act To make the provisions of the Longshoremen's and Harbor Workers'
Compensation Act applicable to certain civilian employees of nonappropriated
fund Instrumentalities of the Armed Forces, and for other purposes.
Be it enacted by the Senate and Hciuse of Representatives of the
United States of America in Congress a~8em~bled,
SEC. 1. Civilian employees, compensated from nonappropriated
funds, of the Army and Air Force Exchange Service, Army and Air
Force Motion Picture Service, Navy Ship's Stores Ashore, Navy ex-
changes, Marine Corps exchanges, Coast Guard exchanges, and other
instrumentalities of the United States under the jurisdiction of the
Armed Forces conducted for the comfort, pleasure, contentment, and
mental and physical improvement of personnel of the Armed Forces,
shall not be held and considered as employees of the United States
for the purpose of any laws administered by the Civil Service Com-
mission or the provisions of the Federal Employees' Compensation
Act, as amended: Provided, That the status of these nonappropriated
fund activities as Federal instrumentalities shall not be affected.
SEC. 2. (a) The Longshoremen's and Harbor Workers' Compensa-
tion Act shall apply with respect to the disability or death resulting
from injury, as defined in section 2(2) of such Act, occurring to a
civilian employee of any nonappropriated fund instrumentality de-
scribed in section 1 of this Act, subject to the following provisions of
this section:
(1) For `the purposes of section 1 of this Act and this section,
the term "employee", in section 2(3) of the Longshoremen's and
Harbor Workers' Compensation Act, as amended, shall include
only-
(A) those employees of such nonappropriated fund instrumen-
talities are as employed within the continental United States and
(63)
PAGENO="0150"
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64
(B) those United States citizens or permanent residents of the
United States or a Territory who are employees of such nonappro-
priat~ed fund instrumentalities outside the continental limits of the
United States.
(2) For the purposes of section 1 of this Act and this section,
the term "employer" in section 2(4) of the Longshoremen's and
Harbor Workers' Compensation Act, as amended, shall include
each of the nonappropriated fund instrumentalities described in
section 1 of this Act.
(3) For the purposes of section 1 of this Act and this section,
only that part of section 3(a) of the Longshoremen's and Harbor
Workers' Compensation Act, as amended, which precedes the first
comma shall apply.
(4) The Secretary of Labor is authorized-
(A) to extend compensation districts established under section
39(b) of the Longshoremen's and Harbor Workers' Compensation
Act, as amended, or to establish new districts to include the areas
outside the continental limits of the United States and
(B) to assign to each such district one or more deputy conimis-
sioners as the Secretary deems advisable.
Judicial proceedings wider sections 18 and 21 of the Longshoremen's
and Harbor Workers' Compensation Act, as amended, with respect
to any injury or death occurring outside the continental limits of the
United States shall be instituted in the district court; within the terri-
torial jurisdiction of which is located the office of the deputy com-
missioner having jurisdiction in respect of such injury or death (or
in the United States District Court for the District of Columbia if
such office is located in such district).
(b) In case of disability or death resulting from injury, as defined
in section 2 (2) of the Longshoremen's and Harbor Workers' Com-
pensation Act, as amended, of an employee who is not a citizen or
permanent resident of the United States or a Territory, employed
outside the continental limits of the United States by any nonappro-
priated fund instrumentality described in section 1 of this Act, com-
pensation shall be provided in accordance with regulations prescribed
by the Secretary of the military department concerned and approved
by the Secretary of Defense or regulations prescribed by the Secretary
of the Treasury, as the case may be.
(c) The liability of the United States or of any nonappropriated
fund instrumentality described in section 1 of this Act, with respect
to the disability or death resulting from injury, as defined in section
2 (2) of the Longshoremen's and Harbor Workers' Compensation Act,
of any employee referred to in subsection (a) or (b) of this section,
PAGENO="0151"
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65
shall be determined as provided in section 1 of this Act and this sec-
tion. Such liability shall be exclusive and in the place of all other
liability of the United States or such instrumentality to the employee,
his legal representative, spouie, dependents, next of kin, and any
person otherwise entitled to recover damages from the United States
or such nonappropriated fund instrumentality on account of such dis-
ability or death in any direct judicial proceedings, in a civil action,
or in admiralty, or by proceedings whether administrative or judicial,
under any workmen's compensation law or under any Federal tore
liability statute.
PAGENO="0152"
834
Public Law 92..576
92nd Congress, S. 2318
October 27, 1972
~n ~Lit __________
86 STAT. 1251
To aiiitnd tile Loiigshoreiiieiis and Harbor `Workers Compensation Act,
and for other purposes.
Re II enacted by the Senate and House of Rep'resentathes of the
lii,ted States of Ameiiea in Congies.s assembled. That this Act may Longshoremen's
be cited as the "Lon~shoremen's and Harbor Workers' Compensa- and }~rbor
tion Act Amendments of 1972". Workers' Compen-
cation Act
~men~ments of
COVERAGE 1972.
SEC. 2. (a) Section 2(3) of the Longshoremen's and 1-Tarbor Work- Definitions.
ers' Compensation Act (44 Stat. 1424, 33 U.S.C. 902) is amended to
read as follows:
"(3) The term `employee' means any person engaged in maritime
employment, including any longshoreman or other person engaged in
longshoring operations. and any harborworker including a ship repair-
man, shipbuilder, and shipbreaker, but such term does not include
a master or member of a crew of any vessel, or any person engaged
by the master to load or unload or repair any small vessel under
eighteen tons net."
(b) Section 2(4) of such Act is amended by striking out "(includ-
ing any dry dock)" and inserting in lieu thereof "(including any
adjoining pier, wharf, dry dock, terminal, building way, marine rail-
way, or other adjoining area customarily used by an employer in
loading, unloading, repairing, or building a vessel) ".
(c) Section 3(a) of such Act is amended by striking out "(includ- 44 Stat. 1426.
ing any dry dock) and if recovery for the disability or death through 33 USC 903.
workmen's compensation proceedings may not validly be provided by
State law", and inserting in lieu thereof "(including any adjoining
pier, wharf, dry dock, terminal, building way, marine railway, or
other adjoining area customarily used by an employer in loading,
unloading, repairing, or building a vessel)
STUDENT BENEFITS
SEC. 3. (a) Section 2 of the Longshoremen's and Harbor Workers' Definitions.
Compensation Act is amended by redesignating paragraph (19) as
paragraph (20) and adding a new paragraph (19) as follows:
"( 19) The term `student' means a person regularly pursuing a full-
time course of study or training at an institution which is-
"(A) a school or college or university operated or directly sup-
ported by the United States, or by any State or local government
or political subdivision thereof,
"(B) a school or college or university which has been accredited
by a State or by a State recognized or nationally recognized
accre(lltiflg agency or body,
"(C) a school or college or university not so accredited but
whose credits are accepted, on transfer, by not less than three
institutions which are so accredited, for credit on the same basis
as if transferred from an institution so accredited, or
"(D) an additional type of educational or training institution
as defined by the Secretary,
but not after he reaches the age of twenty-three or has completed fOur
years of education beyond the high school level, except that,, where
his twenty-third birthday occurs during a semester or other enrollment
period, he shall continue to be considered a student until tile end of
such semester or other enrollment period. A child shall not be deemed
PAGENO="0153"
835
86 STAT. 1252 Pub. Law 92-.576 - 2 - October 27, 1972
to have ceased to be a student during any interim between school
years if the interim does not exceed five months and if he shows to the
satisfaction of the Secretary that lie has a bona fide intention of
continuing to Pluslie a full-time course of education or training during
the seinestei or other enrollment period immediately following the
interim or during periods of reasonable duration during which, in
the judgment of the Secretary, lie is prevented by factors beyond his
control from pursuing his education. A child shall not be deemed
to be a student under this Act during a period of service in the Armed
Forces of the `[nited States."
52 Stat. 1164. (b) The last sentence of section 2(14) of such Act is amended to
33 USC 902. read as follows: "`Child, `grandchild', `brother', and `sister' include
only a person who is under eighteen years of age, or who, though
eighteen years of age or ove~r, is (1) wholly dependent upon the
employee and incapable of self-support by reason of mental or
physical disability, or (2) a student as defined in paragraph (19)
of this section."
TIME FOR COMMENCEMENT OF COMPENSATION
SEC. 4. Sectioii 6(a) of the Longshoremen's and Harbor Workers'
70 Stat. 654. Compensation Act is amended by striking out "more than twenty-eight
33 USC 906. days" and inserting in lieu thereof "more than fourteen days".
3IAXIMFM AND MINIMUM LIMITS OF DISABILITY COMPENSATION AND
ALLOWANCE
SEC. 5. (a) Section 6 of the Longshoremen's and Harbor Workers'
75 Stat. 203. Compensation Act is amended by striking out subsection (b) and
inserting in lieu thereof the following new subsections:
"(b) (1) Except as provided in subsection (c), compensation for
disability shall not exceed the following percentages of the applicable
national average weekly wage as determined by the Secretary under
~)aragraph (3)
"(A) 125 ler centum or $167, whichever is greater, during the
period ending September 30, 1973.
"(B) 150 per centum during the period beginning October 1,
1973. and ending September 30, 1974.
"(C) 175 per centum during the period beginning October 1,
1974, and ending September 30. 1975.
"(I)) 200 per centum beginning October 1,1975.
"(2) Compensation for total disability shall not be less than 50 per
centum of the applicable national average weekly wage determined
by the Secretary under paragraph (3). except that if the employee's
~ p. 1258. average weekly wages as computed under section 10 are less than 50
per centum of such national average weekly wage, he shall receive
his average weekly wages as compensation for total disability.
"(3) As soon as practicable after June 30 of each year, and in any
event prior to October 1 of such year, the Secretary shall determine
the national average weekly wage for the three consecutive calendar
quarters ending .June 30. Such determination shall be the applicable
national average weekly wage for the period beginning with October 1
of that year and ending with September 30 of the next year. The
initial determination under this paragraph shall be made as soon as
practicable after the enactment of this subsection.
"(c) The maximum rate of compensation for a nonappropriated
fund instrumentality employee shall be equal to 662/3 per centum of
the maximum rate of basic pay established for a Federal employee
36 F. R. 347w in grade GS-12 by section 5332 of title 5, ITnited States Code, and
the minimum rate of compensation for such an employee shall be
PAGENO="0154"
836
October 27, 1972 - 3 Pub. Law 92-576 86 STAT. 1253
equal to 66% per centum of the minimum rate of basic pay established
for a Federal employee in grade GS-'2 by such section. 5 USC 5332
"(d) Determinations under this subsection with respect to a period note.
shall apply to employees or survivors currently receiving compensa-
tion for permanent total disability or death benefits during such
period, as well as those newly awarded compensation during such
period."
(b) Section 2 of such Act as amended by this Act is further amended Ante, p. 1251.
I)y redesignating paragraph (20) thereof as paragraph (21) and by
inserting immediately after paragraph (19) the following:
"(20) The term `national average weekly wage' means the national "National aver-
average weekly earnings of production or nonsupervisory workers on age weekly wage."
Private nonagricultural payrolls."
(c) Section 8(d) of such Act is amended to read as follows: 44 Stat. 1429.
"(d) (1) If an employee who is receiving.compensation for perma- 33 USC 908,
nent partial disability pursuant to section 8(c) (1)-(20) dies from 44 Stat. 1427;
causes other than the injury, the total amount of the award unpaid 70 Stat. 655;
at the time of death shall be payable to or for the benefit of his ~ P. 1255.
survivors, as follows:
"(A) if the employee is survived only by a widow or widower,
such unpaid amount of the award shall be payable to such widow
or widower,
"(B) if the employee is survived only by a child or children,
such unpaid amount of the award shall be paid to such child or
children in equal shares,
"(C) if the employee is survived by a widow or widower and a
child or children, such unpaid amount of the award shall be
payable to such survivors in equal shares,
"(1)) if there be no widow or widower and no surviving child
or children, such unpaid amount of the award shall be paid to
the survivors specified in section 9(d) (other than a wife, husband, ~ ~. 1258.
or child) ; and the amount to be paid each such survivor shall be
determined by multiplying such unpaid amount of the award by
the appropriate percentage specified in section 9(d), but if the
aggregate amount to which all such survivors are entitled, as so
determined, is less than such unpaid amount of the award, the
excess amount shall be divided among such survivors pro rata
according to the amount otherwise payable to each under this
subparagraph.
"(2) Notwithstanding any other limitation in section 9, the total
amount of any award for peimaneiit partial disability pursuant to
section 8(c) (1)-(20) unpaid at time of death shall be payable in
full in the appropriate distribution.
"(3) If an employee who was receiving compensation for perrna-
iient partial disability pursuant to section 8(c) (21) dies from causes
other than the injury, his survivors shall receive death benefits as
1no~~ided in section 9(b)-(g), except that the percentage figures L9~~ pp. 1257,
therein shall be applied to the weekly compensation payable to the 1258.
employee at tile time of his death multiplied by 1.5, rather than to
his average weekly wages.
"(4) An award for disability may be made after the death of
the injured employee. Except where compensation is payable under
section 8(c) (21), if there be no survivors as prescribed in this see-
t.iOii, then the compensation payable under this subsection shall be
paid to the special fund established under section 44(a) of this Act."
(d) The first phrase of section 9 of such Act, preceding the first 33 USC 909,
colon, is amended to read as follows:
"If the injury causes death, or if the employee who sustains per-
manent total disability due to the injury thereafter dies from causes
PAGENO="0155"
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86 STAT. 1254 Pub. Law 92-576 - 4 - October 27, 1972
other than the injury, the compensation shall be known as a death
benefit and shall be payable in the amount and to or for the benefit
of the persons following :"
75 Stat, 203. (e) Section 14 of such Act is amended by striking out subsection
33 USC 914. (m).
MEDICAL SERVICES
SEc. 6. (a) Section 7 of the Longshoremen's and Harbor Workers'
74 Stat. 900. Compensation Act is amended to read as follows:
33 USC 907.
MEDICAL SERVICES AND SUPPLIES
"SEC. 7. (a) The employer shall furnish such medical, surgical,
and other attendance or treatment, nurse and hospital service, medi-
cine, crutches, and apparatus, for such period as the nature of the
injury or the process of recovery may require.
Physician, "(b) The employee shall have the right to choose an attending
selection, physician authorized by the Secretary to provide medical care under
this Act as hereinafter provided. If, due to the nature of the injury,
the employee is unable to select his physician and the nature of the
injury requires immediate medical treatment and care, the employer
shall select a physician for him. The Secretary shall actively supervise
the medical care rendered to injured employees, shall require periodic
reports as to the medical care being rendered to injured employees,
shall have authority to determine the necessity, character, and suffi-
ciency of any medical aid furnished or to be furnished, and may,
on his ow-n initiative or at the request of the employer, order a change
of physicians or hospitals when in his judgment such change is desir-
able or necessary in the interest of the employee. Change of physicians
at the request of employees shall be permitted in accordance with
regulations of the Secretary.
Authorized "(c) The Secretary may designate the physicians who are author-
physicians. ized to render medical care under the Act. The names of physicians
so designated in the community shall be made available to employees
through posting or in such other form as the Secretary may prescribe.
"(d) An employee shall not be entitled to recover any amount
expended by him for medical or other treatment or services unless he
shall have requested the employer to furnish such treatment or services,
or to authorize provision of medical or surgical services by the phys-
ician selected by the employee, and the employer shall have refused
or neglected to do so, or unless the nature of the injury required such
treatment and services and the employer or his superintendent or
foreman having knowledge of such injury shall have neglected to
Report, provide or authorize the same; nor shall any claim for medical or
surgical treatment be valid and enforceable, as against such employer,
unless within ten days following the first treatment the physician
giving such treatment furnish to the employer and the Secretary a
report of such injury and treatment, on a form prescribed by the Sec-
retary. The Secretary may, however, excuse the failure to furnish such
report within ten days when he finds it to be in the interest of justice to
do so, and he may, upon application by a party in interest, make an
award for the reasonable value of such medical or surgical treatment
so obtained by the employee. If at any time the employee unreason-
ably refuses to submit to medical or surgical treatment, or to an
examination by a physician selected by the employer, the Secretary
may, by order, suspend the payment of further compensation during
such time as such refusal continues, and no compensation shall be
paid at any time during the period of such suspension, unless the
circumstances justified the refusal.
PAGENO="0156"
838
October27, 1972 - 5- Pub. Law 92-576 86 STAT. 1255
"(e) In the event that medical questions are raised in any case, the Ptysioal
Secretary shall have the power to cause the employee to be examined exeininat ion.
by a physician employed or selected by the Secretary and to obtain
from such physician a report containing his estimate of the employee's
physical impairment and such other information as may be appropri-
ate. Any party who is dissatisfied with such report may request a Review.
review or reexamination of the employee by one or more different phy-
sicians employed or selected by the Secretary. The Secretary shall
order such review or reexamination unless he finds that it is clearly
unwarranted. Such review or reexamination shall be completed within
two weeks from the date ordered unless the Secretary finds that because
of extraordinary circumstances a longer period is required. The Secre-
tary shall have the power in his discretion to charge the cost of exami-
nation or review under this subsection to the employer, if he is a
self-insurer, or to the insurance company which is carrying the risk,
in appropriate cases, or to the special fund in section 44. ~ p. 1256.
"(f) An employee shall submit to a physical examination under
subsection (e) at such place as the Secretary may require. The place,
or places, shall be designated by the Secretary and shall be reasonably
convenient for the employee. No physician selected by the employer,
carrier, or employee shall be present at or participate in any manner
in such examination, nor shall conclusions of such physicians as to the
nature or extent of impairment or the cause of impairment be available
to the examining physician unless otherwise ordered, for good cause,
by the Secretary. Such employer or carrier shall, upon request, be
entitled to have the employee examined immediately thereafter and
upon the same premises by a qualified physician or physicians in the
presence of such physician as the employee may select, if any. Pro-
ceedings shall be suspended and no compensation shall be payable for
any period during which the employee may refuse to submit to
examination.
"(g) All fees and other charges for medical examinations, treat- Fees.
ment, or service shall be limited to such charges as prevail in the
community for such treatment, and shall be subject to regulation by
the Secretary. The Secretary shall issue regulations limiting the Regulations.
nature and extent of medical expenses chargeable against the employer
without authorization by the employer or the Secretary.
"(h) The liability of an employer for medical treatment as herein Third party
provided shall not be affected by the fact that his employee was liability.
injured through the faultor negligence of a third party not in the same
employ, or that suit has been brought against such third party. The
employer shall, however, have a cause of action against such third
partyto recover any amounts paid by him for such medical treat-
ment in like manner as provided in section 33(b) of this Act. ~ p. 1262.
"(i) Unless the parties to the claim agree, the Secretary shall not
employ or select any physician for the purpose of making exami-
nations or reviews under subsection (e) of this section who, during
such employment, or during the period of two years prior to such
employment, has been employed by, or accepted or participated in
any fee relating to a workmen's compensation claim from any insurance
carrier or any self-insurer."
DISFIG1JREMENTS
SEC. 7. Section 8(c) (20) of the Longshoremen's and Harbor Work-
ers' Compensation Act is amended to read as follows: 44 Stat. 1428.
"(20) Disfigurement: Proper and equitable compensation not to 33 USC 908.
exceed $3,5C0 shall be awarded for serious disfigurement of the face,
head, or neck or of other normally exposed areas likely to handicap the
employee in securing or maintaining employment."
PAGENO="0157"
839
Pub. Law 92-576 - 6 - October 27, 1972
86 STAT. 1256
SPECIAL FEND
SEC. 8. (a) Section 44(a) of the Longshoremeifs and Harbor Work-
44 Stat. 1444; ers' Compensation Act is amended by adding a period after the word
70 Stat. 656. ~fimd" in the first sentence thereof and deleting the remainder of the
33 USC 944. sentence.
(b) Section 44 of such Act is further amended by redesignating
subsections (d), (e), (f), and (g) as (f), (g), (h), and (i), respec-
tively and by striking out subsection (c) and inserting in lieu thereof
the following:
Pa~'ments. "(c) Payments into such fund shall be made as follows:
"(1) Whenever the Secretary determines that there is no person
entitled under this Act to compensation for the death of an employee
which would otherwise be compensable under this Act, the appro-
priate employer shall pay $5,000 as compensation for the death of
such an employee.
"(2) At the beginning of each calendar year the Secretary shall
estimate the probable expenses of the fund during that calendar year
and each carrier or self-insurer shall make payments into the fund
on a prorated assessment by the Secretary in the proportion that the
total compensation and medical payments made on risks covered by
this Act by each carrier and self-insurer bears to the total of such pay-
ments made by all carriers and self-insurers under the Act in the prior
calendar year in accordance with a formula and schedule to be
determined from time to time by the Secretary to maintain adequate
reserves in the fund.
"(3) All amounts collected as fines and penalties under the provisions
of this Act shall be paid into such fund.
Records, avail- "(d) (1) For the purpose of making rules, regulations, and deter-
ability; in- * minations under this section under and for providing enforcement
vestigations. thereof, the Secretary may investigate and gather appropriate data
from each carrier and self-insurer. For that purpose, the Secretary
may enter aiìd inspect such places and records (and make such tran-
scriptions thereof), question such employees, and investigate such
facts, conditions, practices. or matters as he may deem necessary or
appropriate.
Reoordkeeping. "(2) Each carrier and self-insurer shall make, keep, and preserve
such records, and make such reports and provide such additional
information, as prescribed by regulation or order of the Secretary,
as the Secretary deems necessary or appropriate to carry out his
responsibilities under this section.
"(3) For the purpose of any hearing or investigation related to
determinations or the enforcement of the provisions of this section,
the provisions of sections 9 and 10 (relating to the attendance of
witnesses and the production of books, papers, and documents) of
the Federal Trade Commission Act of September 16, 1914. as amended
38 Stat. 722. (L.S.C.~ title 15, secs. 49 and 50), are hereby made applicable to the
jurisdiction, powers, and duties of the Secretary of Labor.
Appropriation. "(e) There is hereby authorized to be appropriated to the Secretary
the sum of $2,000,000 which the Secretary shall immediately deposit
into the fund. Upon deposit in the fund such moneys shall be treated
Repayment. as the property of such fund. This sum, without additional payments
for interest, shall be repaid from the money or property belonging to
the fund on a schedule of repayment set by the Secretary: Provided,
That full repayment must be made no later than five years from the
(late of deposit into the fund. Each such repayment, as made, shall
be covered into the Treasury of the United States as miscellaneous
receipts."
(d) Section 44 of such Act is further amended by adding the follow-
ing new subsections (j) and (k) :
PAGENO="0158"
840
October 27, 1972 - 7 - Pub. Law 92-576
86 STAT. 1257
"(j) The proceeds of this fund shall be available for payments:
"(1) Pursuant to section 10 and 11 with respect to initial and 44 Stat. 1431;
subsequent annual adjustments in compensation for total perma- 62 Stat. 603.
mient disability or death which occurred prior to the effective 33 USC 910,
date of this subsection. 911.
"(2) Under section 8 (f) and (g), under section 18(b), and 70 Stat. 655,
under seotion 39(c). 656.
"(3) To repay the sums deposited in the fund pursuant to 33 USC 908,
subsection (d). 918, 939.
"(4) To defray the expense of making examinations as provided Ant 54
in section 7. ~, p. 12
"(k) At the close of each fiscal year the Secretary shall submit to Audit.
the Congress a complete audit of the fund."
INJURY FOLLOWING PREVIOUS IMPAIRMENT
Sr.c. 9. (a) Section 8(f) (1) of the Longshoremen's and Harbor
Workers' Compensation Act is amended to read as follows: "(1) In 33 USC 908.
any case in which an employee having an existing permanent partial
disability suffers injury, the employer shall provide compensation
for such disability as is found to be attributable to that injury based
upon the average weekly wages of the employee at the time of the
injury. If following an injury falling within the provisions of section
8(c) (1)-(20), the employee is totally and permanently disabled, and 70 Stat. 655;
the disability is found not to be due solely to that injury, the employer~~, p. 1255.
shall provide compensation for the applicable prescribed period of
weeks provided for in that section for the subsequent injury, or for one
hundred and four weeks, whichever is the greater. In all other cases
of total permanent disability or of death, found not to be due solely
to that injury, of an employee having an existing permanent partial
disability, the employer shall provide in addition to compensation
under paragraphs (b) and (e) of this section, compensation payments
or death benefits for one hundred and four weeks only. If following
an injury falling within the provisions of 8(c) (1)-(20),the employee
has a permanent partial disability and the disability is found not to
be due solely to that injury, and such disability is materially and
substantially greater than that which would have resulted from the
subsequent injury alone, the employer shall provide compensation for
the applicable period of weeks provided for in that section for the
subsequent injury, or for one hundred and four weeks, whichever
is the greater.
"In all other cases in which the employee has a permanent partial
disability, found not to be due solely to that injury, and such dis-
ability is materially and substantially greater than that which would
have resulted from the subsequent injury alone, the employer shall
provide in addition to compensation under paragraphs (b) and (e)
of this section, compensation for one hundred and four weeks only.
(2) After cessation of the payments for the period of weeks pro-
vided for herein, the employee or his survivor entitled to benefits shall
be paid the remainder of the compensation that would be due out of
the special fund established in section 44." ~ . 1256.
(b) Section 8(f) of such Act is further amended by striking out
paragraph (2).
DEATH BENEFITS
SEC. 10. (a) Section 9(a) of the Act is amended by striking out 62 Stat. 602.
`~$4o~ and inserting in lieu thereof "$1,000". 33 USC 909,
(b) Sections 9 (b) and (c) of such Act are amended by striking
"35" and "15" wherever they appear, and substituting "50" and
"16%" respectively.
PAGENO="0159"
841
Pub. Law 92-576 - 8 - October 27, 1972
86 STAT. 1258
52 Stat. 1166. (c) The first sentence of section 9(d) of such Act is amended to
33 usc gog, read as follows: "If there be no surviving wife or husband or child,
or if the amount payable to a surviving wife or husband and to chil-
dren shall be less in the aggregate than 66% per centum of the average
wages of the deceased; then for the support of grandchildren or
brothers and sisters, if dependent upon the deceased at the time of the
injury, and any other persons who satisfy the definition of the term
68A Stat. 43; `dependent' in section 152 of title 26 of the United States Code, but
83 Stat. 722. are not otherwise eligible under this section, 20 per centum of such
wages for the support of each such person during such dependency and
for the support of each parent, or grandparent, of the deceased if
dependent upon him at the time of the injury, 25 per centu.m of such
wages during such dependency."
75 Stat. 203. (d) Section 9(e) of such Act is amended to read as follows:
"(e) In computing death benefits the average weekly wages of the
deceased shall be considered to have been not less than the applicable
~ ~. 1252. national average weekly wage as prescribed in section 6(b) but the
total weekly benefits shall not exceed the average weekly wages of
the deceased."
DETERMINATION OF rAY
44 Stat. 1431; SEC. 11. Section 10 of the Act is amended by adding the following
62 Stat. 603. new subsections:
33 USC 910. "(f) Effective October 1 of each year, the compensation or death
benefits payable for permanent total disability or death arising out
of injuries sustained after the date of enactment of this subsection
shall be increased by a percentage equal to the percentage (if any)
by which the applicable national weekly wage for the period beginning
on such October 1, as determined under section 6(b), exceeds the appli-
cable national average weekly' wage, as so determined, for the `period
beginning with the preceding October 1.
"(g) The weekly compensation after adjustment under subsection
(f) shall be fixed at the nearest dollar. No adjustment of less than $1
shall be made, but in no event shall compensation or death benefits
be reduced.
"(h) (1) Not later than ninety days after the date of enactment of
this subsection, the compensation to which an employee or his survivor
is entitled due to total permanent disability or death which commenced
or occurred prior to enactment of this subsection shall be adjusted. The
amount of such adjustment shall be determined in accordance with
regulations of the Secretary by designating as the employee's average
weekly wage the applicable national average weekly wage determined
under section 6(b) and (A) computing the compensation to which
such employee or survivor would be entitled if the disabling injury or
death had occurred on the day following such enactment date and
(B) subtracting therefrom the compensation to which such employee
or survivor was entitled on such enactment date; except that no such
employee or survivor shall receive total compensation amounting to
less than that to which he was entitled on such enactment date.
Notwithstanding the foregoing sentence, where such an employee or
his survivor was awarded compensation as the result of death or
permanent total disability at less than the maximum rate that was
provided in this Act at the time of the injury which resulted in the
death or disability, then his average weekly wage shall be determined
by increasing his average weekly wage at the time of such injury by
the percentage which the applicable national average weekly wage has
increased between the year in which the injury occurred and the first
day of the first month following the enactment of this section. Where
PAGENO="0160"
842
October 27, 1972 - 9 Pub. Law 92..576
- 86 STAT. 1259
such injury occurred prior to 1947, the Secretary shall determine, on
the basis of such economic data as he deems relevant, the amount by
which the employee's average weekly wage shall be increased for the
pre-1947 period.
"(2) Fifty per centum of any additional compensation or death
benefit paid as a result of the adjustment required by paragraphs (1)
and (3) of this subsection shall be paid out of the special fund
established under section 44 of this Act, and 50 per centum shall be ~ p~ 1256.
paid from appropriations.
"(3) For the purposes of subsections (f) and (g) an injury which
resulted in permanent total disability or death which occurred prior
to the date of enactment of this subsection shall be considered to have
occurred on the day following such enactment date."
TIME FOR NOTICE AND CLAIMS
SEC. 12. (a) Se~tion 12(a) of the Longshoremen's and Harbor
Workers' Compensation Act is amended to read as follows: 44 Stat. 1431.
"SEC. 12. (a) Notice of an injury or death in respect of which 33 USC 912.
compensation is payable under this Act shall be given within thirty
days after the date of such injury or death, or thirty days after the
employee or beneficiary is aware or in the exercise of reasonable
diligence should have been aware of a relationship between the
injury or death and the employment. Such notice shall be given (1)
to the deputy commissioner in the compensation district in which the
injury occurred, and (2) to the employer."
(b) Section 13(a) of such Act is amended to read as follows: 33 USC 913.
"SEC. 13. (a) Except as otherwise provided in this section, the
right to compensation for disability or death under this Act shall
be barred unless a claim therefore is filed within one year after the
injury or death. If payment of compensation has been made without an
award on account of such injury or death, a claim may be filed within
one year after the date of the last payment. Such claim shall be filed
with the deputy commissioner in the compensation district in which
such injury or death occurred. The time for filing a claim shall not
begin to run until the employee or beneficiary is aware, or by the
exercise of reasonable diligence should have been aware, of the
relationship between the injury or death and the employment."
FEES FOR SERVICES
SEC. 13. Section 28 of the Longshoremen's and Harbor Workers'
Compensation Act is amended to read as follows: 33 USC 928.
"FEES FOR SERVICES
"SEC. 28. (a) If the employer or carrier declines to pay any com- Attomey~s
pensation on or before the thirtieth day after receiving written notice fee.
of a claim for compensation having been filed from the deputy com-
missioner, on the ground that there is no liability for compensation
within the provisions of this Act, and the person seeking benefits shall
thereafter have utilized the services of an attorney at law in the suc-
cessful prosecution of his claim, there shall be awarded, in addition to
the award of compensation, in a compensation order, a reasonable
attorney's fee against the employer or carrier in an amount approved
by the deputy commissioner, Board, or court, as the case may he, which
shall be paid directly by the employer or carrier to the attorney for
the claimant in a lump sum after the compensation order becomes
final.
PAGENO="0161"
843
Pub. Law 92-576 - 10- October 27D 1972
66 STAT. 1260 ------------~~----- -
"(b) If the employer or carrier pays or tenders payment of com-
pensation without an award pursuant to section 14(a) and (b) of
44 Stat. 1432. this Act, and thereafter a controversy develops over the amount of
33 USC 914. additional compensation, if any, to which the employee may be entitled,
the deputy commissioner or Board shall set the matter for an informal
conference and following such conference the deputy commissioner or
Board shall recommend in writing a disposition of the controversy
If the employer or carrier refuse to accept such written recommenda-
tion, within fourteen days after its receipt by them, they shall pay or
tender to the employee in writing the additional compensation, if any,
to which they believe the employee is entitled. If the employee refuses
to accept such payment or tender of compensation, and thereafter
utilizes the services of an attorney at law, and if the compensation
thereafter awarded is greater than the amount paid or tendered by
the employer or carrier, a reasonable attorney's fee based solely upon
the difference between the amount awarded and the amount tendered
or paid shall be awarded in addition to the amount of compensation.
The foregoing sentence shall not apply if the controversy relates to
degree or length of disability, and if the employer or carrier offers
to submit the case for evaluation by physicians employed or selected
74 Stat. 900. by the Secretary, as authorized in section 7(e) and offers to tender
33 USC 907. an amount of compensation based upon the degree or length of disa-
bility found by the independent medical report at such time as an
evaluation of disability can be made. If the claimant is successful in
review proceedings before the Board or court in any such case an
award may be made in favor of the claimant and against the employer
or carrier for a reasonable attorney's fee for claimant's counsel in
accord with the above provisions. In all other cases any claim for
legal services shall not be assessed against the employer or carrier.
Approval; "(c) in all cases fees for attorneys representing the claimant shall
payment. be approved in the manner herein provided. If any proceedings are
had before the Board or any court for review of any action, award,
order, or decision, the Board or court may approve an attorney's fee
for the work done before it by the attorney for the claimant. An
approved attorney's fee, in cases in which the obligation to pay the fee
is upon the claimant. may be made a lien upon the compensation due
under an award; and the deputy commissioner, Board, or court shall
fix in the award approving the fee, such lien and manner of pay-
ment.
Costs, wit.. "(d) In cases where an attorney's fee is awarded against an
nessest fees, employer or carrier there may be further assessed against such
employer or carrier as costs, fees and mileage for necessary witnesses
attending the hearing at the instance of claimant. Both the necessity for
the witness and the reasonableness of the fees of expert witnesses must
he approved by the hearing officer, the Board, or the court, as the
case may be. The amounts awarded against an employer or carrier
as attorney's fees, costs, fees and mileage for witnesses shall not in
any respect affect or diminish the compensation payable under this Act.
Unapp roved fees, "(e) Any person who receives any fees, other consideration, or any
solloitation, gratuity on account of services rendered as a representative of a
penalty, claimant, unless such consideration or gratuity is approved by
the deputy commissioner, Board, or court, or who makes it a business
to solicit employment for a lawyer, or for himself in respect of any
claim or award for compensation, shall upon conviction thereof, for
each offense be punished by a fine of not more than $1,000 or by
imprisonment for riot more than one year, or by both such fine and
iniprisonment."
75-623 0 - 74 - pt. 3 - ii
PAGENO="0162"
844
October 27, 1972 - 11 Pub. Law 92-576
86 STAT. 1261
hEARING PROCEDURE
SEc. 14. Section 19((l) of the Longshoremens and Harbor Work-
ers Compensation Act is amended to read as follows: 44 Stat. 1430,
"(d) Notwithstanding any other provisions of this Act, any hear- 33 USC 919.
big held under this Act shall be conducted in accordance with the
provisions of section 554 of title 5 of the United States Code. Any 80 Stat. 384.
such hearing shall lie conducted by a hearing examiner qualified under
section 3105 of that title. All po~vei's, duties, and responsibilities 80 Stat. 428.
vested by this Act, on the date of enactment of the Longshoremen's
and Harbor Workers' Compensation Act Amendments of 1972, in
the deputy commissioners with respect to such hearings shall be vested
in such hearing examiners."
REViEW BOAR!)
SEC. 15. (a) Section 21(b) of the Longshoremen's and Harbor `Work-
ers' Compensation A ct is amended to read as follows: 33 USC 921.
"(b) (1) There is hereby established a Benefits Review Board which Establishoent;
shall be composed of three members al)pOiflted by the Secretary from membership.
among individuals who are especially qualified to serve on such
Board. The Secretary shall designate one of the members of the
Board to serve as chairman.-~?
"(2) For the plilPose of carrying out its functions under this Act,
two members of the Board shall constitute a quorum and official
action can be taken only on the affirmative vote of at least two members.
"(3) The Board shall be authorized to hear and determine appeals Authority.
raising a substantial question of law or fact taken by any party in
interest from decisions with respect to claims of employees under this
Act and the extensions thereof. The Board's orders shall be based upon
the hearing record. The findings of fact in the decision iin~er review
by the Board shall be conclusive if supported by substantial evidence
in the record considered as a whole. The payment of the amounts
required by an award shall not be stayed l)ending final decision in
any such proceeding unless ordered by the Board. No stay shall be
issued unless irruparable injury would otherwise ensue to the employer
or carrier.
"(4) The Board may. on its own motion or at the request of the Remand.
Secretary. remand a case to the hearing examiner for further appro-
l)Iiate action. The consent of the parties in interest shall not be a
prerequisite to a remand by the Board.
"(c) Any person adversely affected or aggrieved by a final order U. S. Court
of the Board may obtain a review of that order in the United States of Appeals,
court of appeals for the circuit in which the injury occurred, by filing reviewS
in such court within sixty days following the issuance of such Board
order a written petition ~)raymg 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 Board, and to the other parties, and there-
upon the Board shall file in the court the record in the proceedings as
l)rovided in section 2112 of title 28, United States Code. Upon such 72 Stat. 941;
filing, the court shall have jurisdiction of the proceeding and shall 80 Stat. 1323.
have the power to give a decree affirming, modifying, or setting aside,
in whole or in l)alt, the order of the Board and enforcing same to
the extent that such order is affirmed or modified. The orders, writs,
and processes of the court in such proceedings may run, be served,
and be returnable anywhere in the United States. The payment of
the amounts required by an award shall not be stayed pending final
decision in any such proceeding unless ordered by the court. No stay
PAGENO="0163"
845
Pub. Law 92-576 - 12 - October 27, 1972
86 STAT. 1262
shall be issued unless irreparable injury would otherwise ensue to the
employer or carrier. The order of the court allowing any stay shall
contain a specific finding, based upon evidence submitted to the court
and identified by reference thereto, that irreparable damage would
result to the employer, and specifying the nature of the damage."
44 Stat. 1436. (b) Redesignate subsections (c) and (d) of such section as (d) and
33 USC 921. (e), respectively.
Ante, ~. 1253 (c) Section 2 of such Act as amended by this Act is further amended
- by redesignating paragraph 21 as paragraph 22 and inserting after
paragraph 20 the following new paragraph:
"(21) The term `Board' shall mean the Benefits Review Board."
52 Stat. 1167. (d) Section 14(f) of such Act is amended by striking everything
33 USC 914. after the words "section 21" and adding in lieu thereof the following:
"and an order staying payment has been issued by the Board or court."
33 USC 923, (e) Sections 23 and 27 of such Act are each amended by adding
927. "or Board" after every reference to "deputy commissioner".
73 Stat. 391. (f) Section 33(b) of such Act is amended by adding the term "or
33 Usc 933. Board" after the term "deputy commissioner".
(g) Section 33(e) (1) (A) of such Act is amended by adding the
words "or Board" after the term "deputy commissioner".
(h) Section 33(g) of such Act is amended to read as follows:
"(g) If compromise with such third person is made by the person
entitled to compensation or such representative of an amount less than
the compensation to which such person or representative would be
entitled to under this Act, the employer shall be liable for compensation
as determined in subdivision (f) only if the written approval of such
compromise is obtained from the employer and its insurance carrier
by the person entitled to compensation or such representative at the
time of or prior to such compromise on a forip provided by the Secre-
tary and filed in the office of the deputy commissioner having jurisdic-
tion of such injury or death within thirty days after such compromise
is made."
33 USC 935. (i) Section 35 of such Act is amended by adding the words "the
Board, or" after the words "deputy commissioner".
33 USC 940. (j) Section 40(f) of such Act is amended by adding the words
"or Board member" after the words "deputy commissioner," when-
ever they occur.
APPEARANcE FOR SECRETARY OF LABO1~
45 Stat. 490. SEC. 16. Section 21a of the Act is amended to read as follows:
33 USC 921a. "SEC. 21a. Attorneys appointed by the Secretary shall represent
the Secretary, the deputy commissioner, or the Board in any court
proceedings under section 21 or other provisions of this Act except
for proceedings in the Supreme Court of the United States."
CLAIMANT ASsISTANCE
SEC. 17. (a) Section 39(c) of the Longshoremen's and Harbor
70 Stat. 656. Workers' Compensation Act is amended by redesignating subsection
33 USC 939. (c) as paragraph (2) of such subsection and by inserting after
subsection (b) thereof the following paragraph:
"(c) (1) The Secretary shall, upon request, provide persons cov-
ered by this Act with information and assistance relating to the Act's
coverage and compensation and the procedures for obtaining such
compensation and including assistance in processing a claim. The
Secretary may, upon request, provide persons covered by this Act
PAGENO="0164"
846
October 27, 1972 - 13 - Pub. Law 92-576
86 SPAT. 1263
with legal assistance in pIocessing a claim. The Secretary shall also
provide employees receiving coinpensatioii information on medical,
manpower, and vo'mtional rehabilitation services and assist such
employees in obtaining the best such services available."
THIRD-PARTY LIABILITY
SEC. 18. (a) Section 5 of the Longshoremen's and Harbor Workers'
Compensation Act is amended to read as follows: 44 Stat. 1426.
33 Usc 905.
"EXCLUSIVENESS OF REMEDY AND THIRD-PARTY LIABILITY
"SEC. 5. (a) The liability of an employer prescribed in section 4 shall 33 USC 9a4~
be exclusive and in place of all other liability of such employer to
the employee, his legal representative, husband or wife, parents,
dependents, next of kin, and anyone otherwise entitled to recover dam-
ages from such employer at law or in admiralty on account of such
injury or death, except that if an employer fails to secure payment
of compensation as required by this Act, an injured employee, or
his legal representative in case death results from the injury, may
elect to claim compensation under the Act, or to maintain an action
at law or in admiralty for damages on account of such injury or
death. In such action the defendant may not plead as a defense that
the injury was caused by the negligence of a fellow servant, or that
the employee assumed the risk of his employment, or that the injury
was due to the contributory negligence of the employee.
"(b) In the event of injury to a person covered under this Act
caused by the negligence of a vessel, then such person, or anyone other-
wise entitled to recover damages by reason thereof, may bring an action
against such vessel as a third party in accordance with the provisions
of section 33 of this Act, and the employer shall not beiiable to the ~ p. 1262.
vessel for such damages directly or indirectly and any agreements or
warranties to the contrary shall be void. If such person was employed
by the vessel to provide stevedoring services, no such action shall be
permitted if the injury was caused by the negligence of persons engaged
in providing stevedoring services to the vessel. If such person was
employed by the vessel to provide ship building or repair services, no
such action shall be permitted if the injury was caused by the negli-
gence of persons engaged in providing ship building or repair services
to the vessel. The liability of the vessel under this subsection shall not
he based upon the warranty of seaworthiness or a breach thereof at
the time the injury occurred. The remedy provided in this subsection
shall be exclusive of all other remedies against the vessel except
remedies available under this Act."
(b) Section 2 of such Act as amended by this Act is further amended ~ P. 1262.
by redesignating paragraph 22 as paragraph 23 and inserting after
paragraph 21 the following new paragraph:
"(22) The term `vessel' means any vessel upon which or in connec- Vessel."
tion with which any person entitled to benefits under this Act suffers
injury or death arising out of or in the course of his employment, and
said vessel's owner, owner pro hac vice, agent, operator, charter or
bare boat charterer, master, officer, or crew member."
PROHIBITION AGAINST CERTAIN DISCRIMINATION AGAINST EMPLOYEES
SEc. 19. The Longshoremen's and Harbor Workers' Compensation
Act is further amended *by redesignating sections 49, 50, and 51 as 44 Stat. 1446.
sections 50, 51, and 52, respectively, and by inserting immediately 33 USC 949,
after section 48 the following new section: 950.
PAGENO="0165"
847
86 STAT. 1264 Pub. Law 92-576 - 14 - October 27, 1972
"D1SCIUM1XATIOX AGAiNST EMPLOYEES WHO BRiNG i'ROCEEDINGS
"SEc. 49. It. shall be unlawful for any employer oy his duly author-
ized agent to discharge or in any other manner discriminate against
an employee as to his employment because such employee has claimed
or attempted to claim compensation from such employer, or because
he has testified or is about to testify iii a proceedmg under this Act.
Penalty. Any employer who violates this section shall be liable to a penalty of
not less than $l0() or more than $1,000, as may be determined by the
deputy commissioner. All such Penalties shall be paid to the deputy
commissioner for deposit in the special fund as described in section
~ p. 1256. 44, and if not paid may be recovered in a civil action brought in the
appropriate United States district, court. Any employee so discrim-
inated against, shall be restored to his employment and shall be
compensated by his employer for any loss of wages arising out of
such discrimination: Pioik/ed. That if such employee shall cease to
be qualified to perform the duties of his employment, he shall not be
entitled to such restoration and compensation. The employer alone
and not his carrier shall be liable for such penalties and payments.
Any provi5ioli in an insurance policy undertaking to relieve the
employer from time liability for such penalties and payments shall be
void."
SEc. 20. (a) Section 8(i) of the Longshorernemih and Harbor Work-
ers~ Compensation Act is amended to read as follows:
"(i) (A) Whenever the deputy commissioner determines that is
is for the best interests of nil injured employee entitled to compensa-
tion, he may approve agreed settlements of the interested parties,
discharging the liability of the employer foe such compensation, not-
withstanding the provisions of section 15(b) and section 16 of tins act
Pro rh/ed. That if the employee should die froni causes other than
the injury after the deputy commissioner has approved an agreed
settlement. as provided for herein, the sum 50 approved shall be pay-
able, in the manner prescribed in this subsection, to and for the
benefit of the petsons enumerated in subsection (d) of this section.
"(B) Whenever the Secretary determines that it is for the best
interests of the injured employee entitled to medical benefits, he may
approve agreed settlements of the interested parties, discharging the
liability of the employer for such medical benefits, notwithstanding
the ~ of section 16 of this act: Provi~ed, That if the employee
should die from causes other than the injur after the Secretary has
approved an agreed settlement as provideo for herein, the sum so
ap~~oved shall be payable, in the manner _prescribed in this sub-
division, to and for tIme benefit of the persons enumerated in subdivision
(d) of this section."
(b) Section 11 of such Act is amended by inserting "(a)" inimedi-
atel after the section designation and by adding at the end thereof
the following new subsection:
`(b) Where a trust fund which complies with section 302 (c) of the
Labor-Management Relations Act of 1947 (29 U.S.C. 186(c)) estab-
lislied pursuant to a collective-bargaining agreement in effect between
an employer and an employee entitled to compensation under this Act
has paid disability benefits to an employee which the employee is
legally obligated to repay by reason of his entitlement to compen-
sation cinder this Act. the Secretary may authorize a lien on such
compemisation in favor of the trust fund for the amount of such
Paymemits."
MISCELLANEOtS PROViSIONS
52 Stat. 1165.
33 USC 908.
Agreed settle-
ments, approval.
44 Stat. 1434.
33 USC 915, 916.
52 Stat. 1167.
33 USC 917.
Lien on compen-
sation.
73 Stat. 537;
83 Stat. 133.
PAGENO="0166"
848
October 27, 1972 - 15 - Pub. Law 92-576
86 STAT. 1265
(c) (1) Section 2 of the Longshoremen's and Harbor Workers' Corn- 44 Stat. 1424;
pensation Act as amended by this Act is further amended by striking ~ PP. 1251,
out subsections (16) and (17) and inserting in lieu thereof the follow- 1253, 1262,
ing new subsection (16) and by redesignating subsections 2 (18), (19), 1263.
(20), (21), (22),and (23) as2 (17), (18), (19), (20), (21),and (22),
respectively.
"(16) The terms `widow or widower' includes only the decedent's "Widow or
wife or husband living with or dependent for support upon him or widower."
her at the time of his or her death; or living apart for justifiable
cause or by reason of his or her desertion at such time."
(2) Section 9 of the Longshoremen's and Harbor Workers' Com-
pensation Act, as amended by this Act, is further amended by striking ~ PP. 1253,
the phrase "surviving wife or dependent husband" each time it appears 1257.
and inserting in lieu thereof the phrase "widow or widower".
(3) The amendments made by this subsection shall apply only with
respect to deaths or injuries occurring after the enactment of this Act.
TECHNICAL AMENDMENT
SEC. 21. Section 3(a) (1) of the Longshoremen's and Harbor Work-
ers' Compensation Act is amended by striking out the word "nor" and 44 Stat. 1426.
inserting in lieu thereof the word "or". 33 USC 903.
EFFECTIVE DATE
SEC. 22. The amendments made by this Act shall become~ effective
thirty days after the date of enactment of this Act.
Approved October 27, 1972.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 92-1441 accompanying H. R. 12006 (Comm. on
Education and Labor).
SENATE REPORT No. 92-1125 (Comm. on Labor and Public Welfare).
CONGRESSIONAL RECORD, Vol. 118 (1972):
Sept. 14, considered and passed Senate.
Oct. 14, considered and passed House, amended, in lieu of
H. R. 12006; Senate concurred in House amendment.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 8, No. 45:
Oct. 30, Presidential statement.
0
PAGENO="0167"
FEDERAL COAL MINE HEALTH AND SAFETY
ACT OF 1969
Public Law 91-173 (1969)
Summary and Description
The main objective of the Federal Coal Mine Health and Safety Act
is to protect the health and safety of the Nation's coal miners; and to
improve and expand, in cooperation with the States and the coal min-
ing industry, research and development and training programs aimed
at preventing coal mine accidents and occupationally caused diseases
in the industry. This is effected through frequent inspections by the
Department of the Interior of mines and related plants for the pur-
pose of obtaining, utilizing~ and disseminating information related to
health and safety conditions, the causes and diseases and physical im-
pairments originating in such mines; gathering information with re-
spect to mandatory health or safety standards, and determining
whether or not there is compliance with the mandatory safety and
health standards. Each coal mine, the products of which enter com-
merce, or the operation or products of which effect commerce; each
operator of such mine, and every miner in such mine is subject to the
provisions of the Act.
The Act establishes mandatory health and safety standards for such
mines, which remain in effect until superseded in whole or in part by
improved standards. The Secretary of Health, Education, and Welfare
is required to develop and revise improved mandatory health stand-
ards, and the Secretary of the Interior is required to develop, promul-
gate, and revise mandatory safety standards.
Title IV of the Federal Coal Mine Health and Safety Act of 1969,
as amended by the Black Lung Benefits Act of 1972:
GENERAL STATEMENTS
The Black Lung Benefits Act of 1972 improves Title IV of the Fed-
eral Coal Mine Health and Safety Act of 1969 with respect to coverage
for additional beneficiaries, as well as easing evidentiary requirements
of establishing total disability due to pneumoconiosis. Several
other new provisions were added, which will materially aid the dis-
abled coal miner, his family and survivors. Following is a discussion
of the provisions of the new law.
(849)
PAGENO="0168"
850~.
DEPENDENT BENEFITS
ORPHANS
Orphaned children had no basis under title `lIT of the 1969 act for
claiming benefits. The Black Lung Benefits Act of 1972 permits
orphans to claim benefits and places them in the same position they
would have been had they been covered since the date of the original
1969 act. That is, benefits are made retroactive to December 30, 1969,
for children who file claims within 6 months after enactment (May 19,
1972), or for such retroactive period as they are eligible for benefits.
Claims filed more than 6 months after enactment are payable for a
period of twelve months preceding the date of filing, or for such
portion of the 12 months a child is eligible for benefits.
Orphans are entitled to the amount of the miner's benefit, plus an
additional 50 percent if there are two children, an additional 75 per-
cent if there are three children, and an additional 100 percent if there
are more than three children.
OTHER DEPENDENTS
Dependent parents, brothers, or sisters may be eligible for benefits'
as survivors' of a miner. Such dependents are not eligible unless at the
time of the miner's death the miner left no surviving widow or child.
In ~uch cases, if there is a surviving parent of the miner who was totally
dependent on the miner for his or her support and lived in the miner's
home for at least 1 year prior to the miner's death, such parent is en-
titled to benefits. If there is no surviving widow, child, or dependent
parent, dependent brothers or sisters who meet the same requirements
for `eligibility as dependent parents are entitled to benefits.
CERTIFICATION OF `DEPENDENT BENEFITS
The Secretary of Health, Education, and Welfare may provide
benefits directly to a dependent, or to a third person for the benefit of
the dependent, where he determines it is `in the dependent's interest to
do so. Such cases `may arise, for example, when a miner or widow
refuses th ask for benefits for a dependent child, or where `a miner
estranged from his wife or children does not provide these dependents
the `black lung benefits to which they are entitled.
WIDOWS~ CLAIMS
Before enactment of the 1972 law a widow of a miner could not
claim `black lung benefits unless her husband was receiving benefits
at the time of his death, the miner had filed an application for benefits
prior to his death, or died from pneumoconiosis or a respirable disease.
Tinder the new law, in addition, a widow is entitled to benefits regard-
less of the cause of death if it is established that the miner was, under
the law, totally disabled by pneumoconiosis at the time of his death.
PAGENO="0169"
851
EXPANSION OF COVERAGE
DENIAL OF CLAIMS BASED ON X-RAYS
The 1972 law states that, in determining the validity of claims for
black lung benefits, denial of such claims shall not be based solely on
the results of a chest roentgenogram. Many claims have in the past
been denied either because there was no X-ray in the case of a deceased
miner, or because the X-ray did not positively establish the existence
of pneumoconiosis. Thus, under the new law the Social Security
Administration and DOL mustt base the denial of a claim on evidence
in addition to a negative X-ray. Persons who have filed claims under
the old law and were denied benefits on this basis will have their cases
reviewed under the 1972 act.
REBUTrABLE PRESUMPTION
A new rebuttable presumption of pneumoconiosis is established un-
der the 1972 act, effective retroactively to December 30, 1969, under
which a totally disabled coal miner who worked in an underground
mine (or in conditions substantially similar to an underground mine)
for 15 years, is considered totally disabled by pneumoconiosis if lie
has or had a totally disabling respiratory or pulmonary impairment
but his chest X-ray (if any) has been interpreted as negative for pneu-
moconiosis. A limitation is imposed on this presumption with respect
to claims filed under part C of Title IV, discussed below. The presump-
tion may be rebutted only by establishing that the miner does not, or
did not, have pneumoconiosis, or that his respiratory or pulmonary
impairment did not arise out of, or in connection with, his work in a
coal mine.
OTHER TESTS AND EVIDENCE
The Black Lung Benefits Act of 1972 provides that all relevant med-
ical tests, such as blood gas studies, X-ray examination, electrocardio-
gram, pulmonary function studies, or physical performance tests, are
to be considered in determining the validity of claims, as well as medi-
cal history, evidence submitted by the claimants' physician, and in the
case of a deceased miner, affidavits of other persons with knowledge of
his physical condition. Use of such additional tests, like the prohibi-
tion against denial of benefits solely on the basis of an X-ray and the
rebuttable presumption just described, is made retroactive to Decem-
ber 30, 1969, so that previously denied or pending claims will be re-
viewed accordingly.
TOTAL DISABILITY DEFINITION
The new law amends the definition of total disability to conform to
the realities of the coal mining population. Thus, a coal miner will be
considered totally disabled, for the purpose of. determining eligibility
for black lung benefits, when pneurnoconiosis prevents him from
gainful work which requires skills and abilities similar to those he used
PAGENO="0170"
852
with some regularity and over a substantial period of time while
working in the mines. The new definition is applicable retroactive to
December 30, 1969, so that miners or their surviving dependents who
filed claims under the 1969 act and were denied on the basis of the
miner's not being totally disabled will have their claims reexamined.
SOCIAL SECURITY OFFSET
The new black lung law states that the Federal black lung program
is not to be considered a workmen's compensation law or plan for
purposes of section 224 of the Social Security Act. Prior to enactment
of the 1972 law where a claimant was receiving social security disability
insurance benefits as well as black lung benefits, such social security
payments were reduced to the extent that the combination of benefits
exceeded 80 percent of the miner's prior earnings. Under the new law
such reduction will be prohibited. Since this provision is made retro-
active to December 30, 1969, beneficiaries whose social security
disability benefits were reduced under the Social Security Administra-
tion's interpretation of 1969 law will be entitled to reimbursement by
the Federal Government for the amount of the reduction.
SURFACE MINERS
The 1969 act applied only to miners and dependents of miners who
worked in underground coal mines. The 1972 Black Lung Benefits Act
enlarges the coverage of the program to include coal miners (and their
dependents, and survivors) who worked in coal mines other than
underground mines. This was done by striking all references to "under-
ground" in Title IV of the act. Surface miners may be eligible for
benefits under the rebuttable presumption discussed above if the
conditions during their 15 years of employment in a mine or mines
were comparable to conditions in an underground mine. This provision
is also effective retroactive to December 30, 1969.
PROTECTIONS, Pnoc~tn~s, AND DATE CHANGES
EXTENSION OF PROGRAM
The 1972 act extends federal responsibility for payment of lifetime
benefits by 18 months. Thus, claims filed on or before June 30, 1973,
will, upon their approval, be paid by the Federal Government for the
life of the beneficiaries, or for so long as such beneficiaries remain
eligible for benefits.
Claims filed between July 1, 1973, and December 31, 1973, will be
filed with the Social Security Administration district offices and at
such other locations as provided in joint regulations of the Secretaries
of Labor and Health, Education, and Welfare, and will be paid by the
Secretary of Labor until December 31, 1973. All claims filed during
this 6-month period, and all new claims filed after January 1, 1974,
subsequently will be paid according to State workmen's compensation
laws, if those laws comply with standards promulgated by the Secre-
tary of Labor. In any State that does not have such a law the claim
will be processed pursuant to Title IV of the Federal Coal Mine and
PAGENO="0171"
853
Safety Act and will be paid either by the responsible operator or the
Departmeflt of Labor.
The legislation also extends part C of Title IV, under which claims
are filed pursuant to State workmen's compensation laws, from a
termination date of 7 years following enactment of the 1969 act
(December 30, 1976), to a termination date of 12 years following such
enactment (December 30, 1981). Thus no new claims are payable after
December 30, 1981. All claims filed under part C prior to that date,
however will be paid under State workmen's compensation laws for
the life of the beneficiaries, or for so long as such beneficiaries remain
eligible for benefits.
APPLICATION OF PART B TO PART C
Amendments to Title IV of the Federal Coal Mine Health and
Safety Act made by the Black Lung Benefits Act of 1972 to part B are
also, to the extent appropriate, applicable to part C. Thus, all amend-
ments to part B except the social security offset provision and the
transition provision relating to claims filed between July 1, 1973, and
December 31, 1973, apply to part C. There is, in addition, a limitation
on the applicability under part C of the rebuttable presumption dis-
cussed previously. Under part C and part C only, no period of employ-
merit after ,June 30, 1971, shall be taken into account in establishing
the 15 years' requirement of work in an underground mine or mines.
DISCRIMINATION IN EMPLOYMENT
A new section of Title IV prohibits discrimination by an operator
against any miner solely because such miner suffers from pneumoconi-
osis. Any miner who believes he has been discharged or otherwise
discriminated against may within 90 days ask for a review consisting,
as appropriate, of investigation, hearing and enforcement procedures
conducted by the Secretary of Labor.
NOTICE TO CLAIMANTS OF AMENDMENTS
The 1972 act requires the Secretary of Health, Education, and
Welfare to notify each person whose black lung claim has been denied
or is pending of the changes to Title IV, and that his claim will be
reviewed in light of the 1972 law. Also to be notified are those who
may be entitled to retroactive benefits due to elimination of the social
security offset provision. There will be no need for a claimant to file
an application for review. Changes in the law will also be widely
publicized in the various communications media by the Social
Security Administration.
LIMITATION ON FILING CERTAIN CLAIMS
With respect to claims filed under part C the validity of which rests
on the new rebuttable presumption, these must be filed within 3 years
after the miner's last exposed employment in a mine (for a living
miner), and in the case of a deceased miner, such claims must be filed
within 15 years after the miner's last exposed employment.
PAGENO="0172"
854
MEDICAL BENEFITS
The new law requires employers under part C to provide medical
benefits to their employees and requires State compensation laws to
include such a requirement to qualify as adequate under part C.
APPLICATION OF SOCIAL SECURITY ACT PROCEDURES
The 1972 act makes applicable to Title IV certain procedural safe-
guards of the Social Security Act relating to hearing rights and
procedures, judicial review, and limitation on attorneys' fees. Also
included are provisions relating to subpena authority and enforce-
ment, overpayment and underpayment of claims, antigarnishment
provisions, and criminal penalties for fraud.
CLINICAL FACILITIES AN)~-RESEARCH
The Black Lung Benefits Act of 1972 adds a new section to Title IV
authorizing $10 million per year for 3 years to build and operate fixed
site and mobile clinics for analysis, examination and treatment of
respiratory and pulmonary impairments in both active and inactive
coal miners. In addition, the new section directs that research be
initiated to devise simple and effective tests to measure, detect and
treat respiratory and pulmonary impairments.
Text of Act
(Section Nos. refer to the Public Law)
AN ACT To provide for the protection of the health and safety of persons work-
ing in the coal mining industry of the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled. That this Act may
be cited as the "Federal Coal Mine Health and Safety Act of 1969".
FINDINGS AND PURPOSE
SEC. 2. Congress declares that-
(a) the first priority and concern of all in the coal mining
industry must be the health and safety of its most precious
resource-the miner;
(b) deaths and serious injuries from unsafe and unhealthful
conditions and practices in the coal mines cause grief and suffer-
ing to the miners and to their familes;
(c) there is an urgent need to provide more effective means and
measures for improving the working conditions and practices in
the Nation's coal mines in order to prevent death and serious
physical harm, and in order to prevent occupational disease origi-
nating in such mines;
(d) the existence of unsafe and unhealthful conditions and
practices in the Nation's coal mines is a serious impediment to
the future growth of the coal mining industry and cannot be
tolerated;
(e) the operators of such mines with the assistance of the miners
have the primary responsibility to prevent the existence of such
conditions and practices in such mines;
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(f) the disruption of production and the loss of income to oper-
ators and miners as a result of coal mine accidents or occupation-
ally caused diseases unduly impedes and burdens commerce; and
(g) it is the purpose of this Act (1) to establish interim manda-
tory health and safety st.andards and to direct the Seóretary of
Health, Education, and Welfare and the Secretary of the Interior
to develop and promulgate improved mandatory health or safety
standards to protect the health and safety of the Nation's coal
miners; (2) to require that each operator of a coal mine and
every miner in such mine comply with such standards; (3) to
cooperate with, and provide assistance to, the States in the devel-
opment and enforcement of effective State coal mine health and
safety programs; and (4) to improve and expand, in coopera-
tion with the States and the coal mining industry, research and
development and training programs aimed at preventing coal
mine accidents and occupationally caused diseases in the industry.
DEFINITIONS
SEC. 3. For the purpose of this Act, the term-
(a) "Secretary" means the Secretary of the Interior or his
delegate;
(b) "commerce" means trade, traffic, commerce, transporta-
tion, or communication among the several States, or between a
place in a State and any place outside thereof, or within the Dis-
trict of Columbia or a possession of the United States, or between
points in the same State but through a point outside thereof;
(c) "State" includes a State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, American Samoa, Guam, and the Trust Territory of the
Pacific Islands;
(d) "operator" means any owner, lessee, or other person who
operates, controls, or supervises a coal mine;
(e) "agent" means any person charged with responsibility for
the operation of all or a part of a coal mine or the supervision of
the miners in a coal mine;
(f) "person" means any individual, partnership, association,
corporation, firm, subsidiary of a corporation, or other organiza-
tion;
(g) "miner" means any individual working in a coal mine;
(h) "coal mine" means an area of land and all structures, facil-
ities, machinery, tools, equipment, shafts, slopes~ tunnels, excava-
tions, and other property, real or personal, placed upon, under, or
above the surface of such land by any person, used in, or to be used
in, or resulting from, the work of extracting in such area bitumi-
nous coal, lignite,- or anthracite from its natural deposits in the
earth by any means or method, and the work of preparing the
coal so extracted, and includes custom coal preparation facilities;
(i) "work of preparing the coal" means the breaking, crushing,
sizing, cleaning, washing, drying, mixing, storing, and loading of
bituminuous coal, lignite, or anthracite, and such other work of
preparing such coal as is usually done by the operator of the coal
ntine;
PAGENO="0174"
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(j) "imminent danger" means the existence of any condition or
practice in a coal mine which could reasonably be expected to
cause death or serious physical harm before such condition or
practice can be abated;
(k) "accident" includes a mine explosion, mine ignition, mine
fire, or mine inundation, or injury to, or death, of, any person;
(1) "mandatory health or safety standard" means the interim
mandatory health or safety standards established by titles II and
III of this Act, and the standards promulgated pursuant to title
I of this Act; and
(m) "Panel" means the Interim Compliance Panel established
by this Act.
MINES SUBJECT TO ACT
SEC. 4. Each coal mine, the products of whiôh enter commerce, or
the operations or products of which affect commerce, and each opera-
tor of such mine, and every miner in such mine shall be subject to the
provisions of this Act.
INTERIM COMPLIANCE PANEL
SEC. 5. (a) There is hereby established the Interim Compliance
Panel, which shall be composed of five members as follows:
(1) Assistant Secretary of Labor for Labor Standards, Depart-
ment of Labor, or his delegate;
(2) Director of the Bureau of Standards, Department of Com-
merce, or his degelate;
(3) Administrator of Consumer Protection and Environ-
mental Health Service, Department of Health, Education, and
`Welfare, or his delegate;
(4) Director of the Bureau of Mines, Department of the
Interior, or his delegate; and
(5) Director of the National Science Foundation, or his dele-
gate.
(b) Members of the Panel shall serve without compensation in addi-
tion to that received in their regular employment, but shall be entitled
to reimbursement for travel, subsistence, and other necessary expenses
incurred by them in the performance of duties vested in the Panel.
(c) Notwithstanding any other provision of law, the Secretary of
Health, Education,. and Welfare, the Secretary of Commerce, the Sec-
retary of Labor, and the Secretary shall, upon request of the Panel,
provide the Panel such personnel and other assistance as the
Panel determines necessary to enable it to carry out its functions
under this Act.
(d) Three members of the Panel shall constitute a quorum for
doing business. All decisions of the Panel shall be by majority vote.
The chairman of the Panel shall be selected by the members from
among the membership thereof.
(e) The Panel is authorized to appoint as many hearing examiners
as are necessary for proceedings required to be conducted in accord-
ance with the provisions of this Act. The provisions applicable to
hearing examiners appointed under section 3105 of title 5 of the
United States Code shall be applicable to hearing examiners appointed
pursuant to this subsection.
(f) (1) It shall be the function of the Panel to carry out the duties
imposed on it pursuant to this Act and to provide an opportunity for
PAGENO="0175"
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a public hearing, after notice, at the request of an operator of the
affected coal mine or the representative of the miners of such mine.
Any operator or representative of miners aggrieved by a final decision
of the Panel may file a petition for review of such decision under sec-
tion 106 of this Act. The provisions of this section shall terminate
upon completion of the Panel's functions as set forth under this Act.
Any hearing held pursuant to this subsection shall be of record and
the Panel shall make findings of fact and shall issue a written decision
incorporating its findings therein in accordance with section 554 of
title 5 of the United States Code.
(2) The Panel shall make an annual report, in writing, to the Secre-
tary for transmittal by him to the Congress concerning the achieve-
ment of its purposes, and any other relevant information (including
any recommendations) which it deems appropriate.
TITLE I-GENERAL
HEALTH AND SAFETY STANDARDS; REVIEW
SEC. 101. (a) The Secretary shall, in accordance with the procedures
set forth in this section, develop, promulgate, and revise, as may be
appropriate, improved mandatory safety standards for the protection
of life and the prevention of injuries in a coal mine, and shall, in
accordance with the procedures set forth in this section, promulgate the
mandatory health standards transmitted to him by the Secretary of
Health, Education, and Welfare.
(b) No improved mandatory health or safety standard promulgated
under this title shall reduce the protection afforded miners below that
provided by any mandatory health or safety standard.
(c) In the development and revision of mandatory safety standards,
the Secretary shall consult with the Secretary of Health, Education,
and Welf are, the Secretary of Labor, and with other interested Federal
agencies, appropriate representatives of State agencies, appropriate
representatives of the coal mine operators and miners, other interested
persons and organizations, and such advisory committees as he may
appoint. Such development and revision of mandatory safety stand-
ards 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 safety protection for miners, other
considerations shall be the latest available scientific data in the field,
the technical feasibility of the standards, and experience gained under
this and other safety statutes.
(d) The Secretary of Health, Education, and Welfare, shall, in
accordance with the procedures set forth in this section, develop and
revise, as may be appropriate, improved mandatory health standards
for the protection of life and the prevention of occupational diseases
of miners. In the development and revision of mandatory health stand-
ards, the Secretary of Health, Education,. and Welfare shall consult
with the Secretary, the Secretary of Labor, and with other interested
Federal agencies, appropriate representatives of State agencies, appro-
priate representatives of the coal mine operators and miners, other
interested persons and organizations, such advisory committees as he
may appoint, and~ where appropriate, foreign countries. Such develop-
ment and revision of mandatory standards shall be based upon re-
PAGENO="0176"
858
search, demonstrations, experiments, and such other information as
may be appropriate. In addition to the attainment of the highest de-
gree of health protection for the miner, other considerations shall be
the latest available scientific data in the field, the technical feasibility
of the standards, and experience gained under this and other health
statutes. Mandatory health standards which the Secretary of Health,
Education, and Welfare develops or revises shall be transmitted to
the Secretary, and shall thereupon be published in the Federal Regis-
ter by the Secretary as proposed mandatory health standards.
(e) The Secretary shall publish proposed mandatory health and
safety standards lit the Federal Register and shall afford interested
persons a period of not less than thirty days after publication to sub-
mit written data or comments. In the case of mandatory safety stand-
ards, except as provided in subsection (f) of this section, the Secretary
may, upon the expiration of such period and after consideration of all
relevant matter presented, promulgate such standards with such modi-
fications as he may deem appropriate. In the case of mandatory health
standards, except as provided in subsection (f) of this section, the
Secretary of Health, Education, and Welfare may, upon the expira-
tion of such period and after consideration of all relevant matter pre-
sented to the Secretary and transmitted to the Secretary of Health,
Education, and Welfare, direct the Secretary to promulgate such
standards with such modifications as the Secretary of Health, Educa-
tion, and Welfare may deem appropriate and the Secretary shall there-
upon promulgate such standards.
(f) On or before the last day of any period fixed for the submission
of written data or comments under subsection (e) of this section, any
interested person may file with the Secretary written objections to a
proposed mandatory health or safety standard, stating the grounds
therefor and requesting a public hearing on such objections. As soon
as practicable after the period for filing such objections has expired,
the Secretary shall publish in the Federal Register a notice specifying
the proposed mandatory health or safety standards to which objections
have been filed and a hearing requested.
(g) Promptly after any such notice is published in the Federal
Register by the Secretary under subsection (f) of this section, the
Secretary, in the case of mandatory safety standards, or the Secre-
tary of Health, Education, and Welfare, in the case of mandatory
health standards, shall issue notice of, and hold, a public hearing for
the purpose of receiving relevant evidence. V~Tithin sixty days after
completion of the hearings, the Secretary who held the hearing shall
make findings of fact which shall be public. In the case of mandatory
safety standards, the Secretary may promulgate such standards with
such modifications as he deems appropriate. In the case of mandatory
health standards, the Secretary of Health, Education, and Welfare
may direct the Secretary to promulgate the mandatory health stand-
ards with such modifications as the Secretary of Health, Education,
and Welfare deems appropriate and the Secretary shall thereupon
promulgate the mandatory health standards. In the event the Secre-
tary or the Secretary of Health, Education, and Welfare, as the case
may be, determines that a proposed mandatory health or safety stand-
ard should not be promulgated or should be modified, he shall within
a reasonable time publish his reasons for his determina1~ion.
PAGENO="0177"
859
(h) Any mandatory health or safety standard promulgated under
this section shall be effective upon publication in the Federal Register
unless the Secretary or the Secretary of llealth~ Education, and Wel-
fare, as appropriate, specifies a later date.
(i) Proposed mandatory health and safety standards for surface
coal mines shall be published by the Secretary, in accordance with the
provisions of this section, not later than twelve months after the date
of enactment of this Act. Proposed mandatory health and safety
standards for surface work areas of underground coal mines, in addi-
tion to those established for such areas under this Act, shall be pub-
lished by the Secretary, in accordance with the provisions of this sec-
tion, not later than twelve months after the date of enactment of this
Act.
(j) All interpretations, regulations, and instructions of the Secre-
tary or the Director of the Bureau of Mines, in effect on the date of
enactment of this Act and not inconsistent with any provision of this
Act, shall be published in the Federal Register and shall continue in
effect until modified or superseded in accordance with the provisions
of this Act.
(k) The Secretary shall send a copy of every proposed standard or
regulation at the time of publication in the Federal Register to ~he
operator of each coal 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.
ADVISORY COMMITTEES
SEC. 102. (a) (1) The Secretary shall appoint an advisory commit-
tee on coal mine safety research composed of-
(A) the Director of the Office of Science and Technology, or
his delegate, with the consent of the Director;
(B) the Director of the National Bureau of Standards, De-
partrnent of Commerce, or his delegate, with the consent of the
Director;
(C) the Director of the National Science Foundation, or his
delegate, with the consent of the Director; and
(D) such other persons as the Secretary may appoint who are
knowledgeable in the field of coal mine safety research.
The Secretary shall designate the chairman of the committee.
(2) The advisory committee shall consult with, and make recoin-
mendations to, the Secretary on matt~rs involving or relating to coal
mine safety research. The Secretary shall consult with, and consider
the recommendations of, such committee in the conduct of such
research, the making of any grant, and the entering into of contracts
for such research.
(3) The chairman of the committee and a majority of the persons
appointed by the Secretary pursuant to paragraph (1) (D) of this
subsection shall be individuals who have no economic interests in the
coal mining industry, and who are not operators, miners, or officers
or employees of the Federal Government or any State or local
government.
75-623 0 - 74 - pt. 3 - 12
PAGENO="0178"
86O~
(b) (1) The Secretary of Health, Education, and Welfare shall
appoint an advisory committee on coal mine health research composed
of-
(A) the Director, Bureau of Mines, or his delegate, with the
consent of the Director;
(B) the Director of the National Science Foundation, or his
delegate, with the consent of the Director;
(C) the Director of the National Institutes of Health, or his
delegate, with the consent of the Director; and
(D) such other persons as the Secretary of Health, Education,
and Welfare may appoint who are knowledgeable in the field
of coal mine health research.
The Secretary of Health, Education, and Welfare shall designate
the chairman of the committee.
(2) The advisory committee shall consult with, and make recom-
mendations to, the Secretary of Health, Education, and Welfare on
matters involving or relating to coal mine health research. The Secre-
tary of Health, Education, and Welfare shall consult with, and con-
sider the recommendations of, such committee in the conduct of such
research, the making of any grant, and the entering into of contracts
for such research.
(3) The chairman of the committee and a majority of the persons
appointed by the Secretary of Health, Education, and Welfare pur-
suant to paragraph (1) (D) of this subsection shall be individuals who
have no economic interests in the coal mining industry, and who are
not operators, miners, or officers or employees of the Federal Govern-
ment or any State or local government.
(c) The Secretary or the Secretary of Health, Education, and Wel-
fare may appoint other advisory committees as he deems appropriate
to advise him in carrying out the provisions of this Act. The Secre-
tary or the Secretary of Health, Education, and Welfare, as the case
may be, shall appoint the chairman of each such committee, who shall
be an individual who has no economic interest in the coal mining in-
dustry, and who is not an operator, miner, or an officer or employee of
the Federal Government or any State or local government. A majority
of the members of any such advisory committee appointed pursuant to
this subsection shall be composed of individuals who have no economic
interests in the coal mining industry, and who are not operators,
miners, or officers or employees of the Federal Government or any
State or local government.
(d) Advisory committee members, other than officers or employees
of Federal, State, or local governments, shall be, for each day (includ-
ing traveltime) during which they are performing committee business,
entitled to receive compensation at a rate fixed by the appropriate
Secretary but not in excess of the maximum rate of pay for grade
GS-18 as provided in the General Schedule under section 5332 of title
5 of the United States Code, and shall, notwithstanding the limita-
tions of sections 5703 and 5704 of title 5 of the United States Code,
be fully reimbursed for travel, subsistence, and related expenses.
INSPECTIONS AND INVESTIGATIONS
SEC. 103. (a) Authorized representatives of the Secretary shall
make frequent inspections and investigations in coal mines each year
PAGENO="0179"
861
for the purpose of (1) obtaining, utilizing, and disseminating infor-
mation relating to health and safety conditions, the causes of accidents
and the causes of diseases and physical impairments originating in
such mines, (2) gathering information with respect to mandatory
health or safety standards, (3) determining whether an imminent
danger exists, and (4) determining whether or not there is compliance
with the mandatory health or safety standards or with any notice,
order, or decision issued under this title. In carrying out the require-
ments of clauses (3) and (4) of this subsection, no advance notice of
an inspection shall be provided to any person. In carrying out the
requirements of clauses (3) and (4) of this subsection in each under-
ground coal mine, such representatives shall make inspections of the
entire mine at least four times a year.
(b) (1) For the purpose of making any inspection or investigation
under this Act, the Secretary or any authorized representative of the
Secretary shall have a right of entry to, upon, or through any coal
mine.
(2) For the purpose of developing improved mandatory health
standards, the Secretary of Health, Education, and Welfare or his
authorized representative shall have a right of entry to, upon, or
through, any coal mine.
(3) The provisions of this Act relating to investigations and rec-
ords shall be available to the Secretary of Health, Education, and
Welfare to enable him to carry out his functions and responsibilities
under this Act.
(c) For the purpose of carrying out his responsibilities under this
Act, including the enforcement thereof, the Secretary may by agree-
ment, utilize with or without reimbursement the services, personnel,
and facilities of any Federal agency.
(d) For the purpose of making any investigation of any accident
or other occurrence relating to health or safety in a coal mine, the Sec-
retary may, after notice, hold public hearings, and may sign and issue
subpenas for the attendance and testimony of witnesses and the pro-
duction of relevant papers, books, and documents, and administer
oaths. Witnesses summoned shall be paid the same fees and mileage
that are paid witnesses in the courts of the United States. In case of
contumacy or refusal to obey a subpena served upon any person under
this section, the district court of the United States for any district
in which such person is found or resides or transacts business, upon
application by the United States and after notice to such person, shall
have jurisdiction to issue an order requiring such person to appear
and give testimony before the Secretary or to appear and produce
documents before the Secretary, or both, and any failure to obey such
order of the court may be punished by such court as a contempt
thereof.
(e) In the event of any accident occurring in a coal mine, the oper-
ator shall notify the Secretary thereof and shall take appropriate
measures to prevent the destruction of any evidence which would
assist in investigating the cause or causes thereof. In the event of any
accident occurring in a coal mine where rescue and recovery work is
necessary, the Secretary or an authorized representative of the Secre-
tary shall. take whatever action he deems appropriate to protect the
life of any person, and he may, if he deems it appropriate, supervise
and direct the rescue and recovery activity in such mine.
PAGENO="0180"
862
(f) In the event of any accident occurring in a coal mine, an author-
ized representative of the Secretary, when present, may issue such
orders as he deems appropriate to insure the safety of any person in
the coal mine, and the operator of such mine shall obtain the approval
of such representative, in consultation with appropriate State repre-
sentatives, when feasible, of any plan to recover any person in the
mine or to recover the mine or to return affected areas of the n'nne to
normal.
(g) Whenever a representative of the miners has reasonable grounds
to believe that a violation of a mandatory health or safety standard
exists, or an imminent danger exists, such representative shall have a
right to obtain an immediate inspection by giving notice to the Secre-
tary or his authorized representative of such violation or danger. Any
such notice shall be reduced to writing, signed by the representative of
the miners, and a copy shall be provided the operator or his agent no
later than at the time of inspection, except that~ upon the request of
the person giving such notice, his name and the names of individual
~rniners referred to therein shall not appear in such copy. Upon receipt
of such notification, a special inspection shall be made as soon as pOS-
sible to determine if such violation or danger exists in accordance with
the provisions of this title.
(h) At the commencement of any inspection of a coal mine by an
authorized representative of the Secretary, the authorized representa-
tive of the miners at the mine at the time of such inspection shall be
given an opportunity to accompany the authorized representative of
the Secretary on such inspection.
(i) Whenever the Secretary finds that a mine liberates excessive
quantities of methane or other explosive gases during its operations, or
that a methane or other gas ignition or explosion has occurred in such
ipine which resulted in death or serious injury at any time during the
previous' five years, or that there exists in such mine other especially
hazardous conditions, he shall provide a minimum of one spot inspec-
tion by his authorized representative of all or part of such mine during
ever~y five working days at irregular intervals.
FINDINGS, NOTICES, AND ORDERS
SEC. 104. (a) If, upon any inspection of a coal mine, an authorized
representative of the Secretary finds that an imminent danger exists,
such representative shall determine the area throughout which such
danger exists, and thereupon shall issue forthwith an order requiring
the operator of the mine or his agent to cause immediately all persons,
except those referred to in subsection (d) of this section, to be with-
drawn from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that such immi-
nent danger no longer exists.
(b) Except as provided in subsection (i) of this section, if, upon
any inspection of a coal mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health
or safety standard but the violation has not created an imminent dan-
ger, he shall issue a notice to the operator or his agent fixing a reason-
able time for the abatement of the violation. If, upon the expiration
PAGENO="0181"
863
of the period of time as originally fixed or subsequently extended, an
authorized representative of the Secretary finds that the violation has
not been totally abated, and if he also finds that the period of time
should not be further extended, he shall find the extent of the area af-
fected by the violation and shall promptly issue an order requiring the
operator of such mine or his agent to cause immediately all persons,
except those referred to in subsection (d) of this section, to be with-
drawn from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that the viola-
tion has been abated.
(c) (1) If, upon any inspection of a coal mine, an authorized repre-
sentative of the Secretary finds that there has been a violation of any
mandatory health or safety standard, and if he also finds that, while
the conditions created by such violation do not cause imminent danger,
such violation is of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard,
and if he finds such violation to be caused by an unwarrantable failure
of such operator to comply with such mandatory health or safety
standards, he shall include such finding in any notice given to the oper-
ator under this Act. If, during the same inspection or any subsequent
inspection of such mine within ninety days after the issuance of such
notice, an authorized representative of the Secretary finds another
violation of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of such opera-
tor to so comply, he shall forthwith issue an order requiring the oper-
ator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (d) of this section, to be with-
drawn from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that such vio-
lation has been abated.
(2) If a withdrawal order with respect to any area in a mine has
been issued pursuant to paragraph (1) of this subsection, a withdrawal
order shall promptly be issued by an authorized representative of the
Secretary who finds upon any subsequent inspection the existence in
such mine of violations similar to those that resulted in the issuance
of the withdrawal order under paragraph (1) of this subsection until
such time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar vio~
lation, the provisions of paragraph (1) of this subsection shall again
be applicable to that mine.
(d) The following persons shall not be required to be withdrawn
from, or prohibited from entering, any area of the coal mine subject
to an order issued under this section:
(1) any person whose presence in such area is necessary, in the
judgment of the operator or an authorized representative of the
Secretary, to eliminate the condition described in the order ;
(2) any public official whose official duties require him to enter
such area;
(3) any representative of the miners in such mine who is, in
the judgment of the operator or an authorized representative of
the Secretary, qualified to make coal mine examinations or who
PAGENO="0182"
is accompanied by such a person and whose presence in such area
is necessary for the investigation of the conditions described in
the order; and
(4) any consultant to any of the foregoing.
(e) Notices and orders issued pursuant to this section shall contain
a detailed description of the conditions or practices which cause and
constitute an imminent danger or a violation of any mandatory health
or safety standard and, where appropriate, a description of the area
of the coal mine from which persons must be withdrawn and pro-
hibited from entering.
(f) Each notice or order issued under this section shall be given
promptly to the operator of the coal mine or his agent by an authorized
representative of the Secretary issuing such notice or order, and all
such notices and orders shall be in writing and shall be signed by such
representative.
(g) A notice or order issued pursuant to this section, except an
order issued under subsection (h) of this section, may be modified or
terminated by an authorized representative of the Secretary.
(h) (1) If, upon any inspection of a coal mine, an authorized repre-
sentative 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
technology, 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 through-
out which such conditions exist, and thereupon issue a notice to the
operator of the mine or his agent 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
rela~ting to such notice.
(2) Upon the conclusion of such investigation and an opportunity
for a public hearing, upon request by any interested party, the Secre-
tary shall make findings of fact, and shall by decision incorporating
such findings therein, either cancel the notice issued under this sub-
section or issue an order requiring the operator of such mine to cause
all persons in the area affected, except those persons referred to in
subsection (d) of this section, to be withdrawn from, arid be pro-
hibited 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 titleS of the United States Code.
(i) If, based upon samples taken and analyzed and recorded `pur-
suant to section 202 (a) of this Act, or samples taken during an inspec-
tion by an authorized representative of the Secretary, the applicable
limit on the concentration of respirable dust required to be maintained
under this Act is exceeded and thereby violated, the Secretary or his
authorized representative shall issue a notice fixing a reasonable time
for the abatement of the violation. During such time, the operator of
the mine shall cause samples described in section 202(a) of this Act
PAGENO="0183"
865
to be taken of the affected area during each production shift. If, upon
the expiration of the period of time as originally fixed or subsequently
extended, the Secretary or his authorized representative finds th~t
the period of time should not be further extended, he shall find the
extent of the area affected by the violation and shall promptly issue
an order requiring the operator of such mine or his agent to cause
immediately all persons, except those referred to in subsection (d) of
this section, to be withdrawn from, and to be prohibited from enter-
ing, such area until the Secretary or his authorized representative has
reason to believe, based on actions taken by the operator, that such
limit will be complied with upon the resumption of production in
such mine. As soon as possible after an order is issued, the Secretary,
upon request of the operator, shall dispatch to the mine involved a
person or team of persons, to the extent such persons are available,
who are knowledgeable in the methods and means of controlling and
reducing respirable dust. Such person or team of persons shall remain
at the mine involved for such time as they shall deem appropriate to
assist the operator in reducing respirable dust concentrations. While
at the mine, such persons may require the operator to take such actions
as they deem appropriate to insure the health of any person in the
coal mine.
REVIEW BY THE SECRETARY
SEC. 105. (a) (1) An operator issued an order pursuant to the pro-
visions of section 104 of this title, or any representative of miners in
any mine affected by such order or by any modification or termination
of such order, may apply to the Secretary for review of the order
within thirty days of receipt thereof or within thirty days of its mod'-
fication or termination. An operator issued a notice pursuant to section
104(b) or (i) of this title, or any representative of miners in any mine
affected by such notice, may, if he believes that the period of time
fixed in such notice for the abatement of the violation is unreasonable.
apply to the Secretary for review of the notice within thirty days of
the receipt thereof. The applicant shall send a copy of such applica-
tion to the representative of miners in the affected mine, or the opera-
tor, as appropriate. Upon receipt of such application, the Secretary
shall cause such investigation to be made as he deems appropriate.
Such invesigation shall provide an opportunity for a public hearing,
at the request of the operator or the representative of miners in such
mine, to enable the operator and the representative of miners in such
mine to* present information relating to the issuance and continuance
of such order or the modification or termination thereof or to the time
fixed in such notice. The filing of an application for review under this
subsection shall not operate as a stay of any order or notice.
(2) The operator and the representative of the miners shall be
given written notice of the time and place of the hearing at least five
days prior to the hearing. Any such hearing shall be of record and
shall be subject to section 554 of title 5 of the United States Code.
(b) Upon receiving the report of such investigations, the Secretary
shall make findings of fact, and he shall issue a written decision, in-
corporating therein an order vacating, affirming, modifying, or termi-
nating the order, or the modification or termination of such order, or
the notice, complained of and incorporate his findings therein.
PAGENO="0184"
866
(c) In view of the urgent need for prompt decision of matters sub-
mitted to the Secretary under this section, all actions which the Secre-
tary takes under this section shall be taken as promptly as practicable,
consistent with adequate consideration of the. issues involved.
(d) Pending completion of the investigation required by this sec-
tion, the applicant may file with the Secretary a ~vritten~request that
the Secretary grant temporary relief (1) from any modification or
termination of any order, or (2) from any order issued under section
104 of this title, except an order issued under section 104(a) of this
title, together with a detailed statement giving reasons for granting
such relief. The Secretary may grant such relief, under such conditions
as he may prescribe, if-
(1) a hearing has been held in which all parties were `given an
opportunity to be heard;
(`2) the applicant shows that there is substantial likelihood
that the findings of the Secretary will be favorable to' the appli-
cant; and
(3) such relief will not adversely affect the health and safety'
of miners in the coal mine.
No temporary relief shall be granted in the case of a notice issued
under sedtion 104(b) or (i) of this title.
JUDICIAL REVIEW
SEC. 106. (a) Any order or decision issued by the Secretary or the
Panel under this Act, except an `order or decision under section 109 (a)
of this Act, shall be subject to judicial review by the United States
court of appeals for the circuit in which the affected mine is located,
or the TJnited States Court of Appeals for the District of Columbia
Circuit, upon the filing in such court within thirty days from the date
of `such order or decision of a petition by any person aggreived by
the order or decision praying that the order or decision be modified
or set aside in whole or in part, except that the court shall not consider
such petition unless such person' has exhausted the administrative
remedies available under this Act. A copy of the petition shall forth-
with be sent by registered or certified mail to the other party and to'
the Secretary or the Panel, and thereupon the Secretary or the Panel
shall certify and file in such court the record upon which the order or
decision complained of was issued, as provided in `section 2112 of title
28, United States Code.
(b~ The court shall hear such petition on the record made before
the Secretary or the Panel. The findings of the Secretary or the Panel,
if supported by substantial evidence on the record considered as a
whole, shall be conclusive. The court may affirm, vacate, or modify
any order or decision or may remand the proceedings to the Secretary
or the Panel for such further action as it may direët.
(c) (1) In the case of a proceeding to review any order or decision
issued by the Secretary under this Act, except an order or decision
pertaining to an order issued under section 104 (a) of this title or an
order or decision pertaining to a notice issued under section 104 (b)
or (i) of this title, the court may, under such conditions as it may
prescribe, grant such temporary relief as it deems appropriate pend-
ing final determination of the proceeding if-
PAGENO="0185"
867
(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 sub-
stantial 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 mine.
(2) In the case of a proceeding to review any order or decision
issued by the Panel under this Act, the court may, under such condi-
tions 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 sub-
stantial likelihood that he will prevail on the merits of the final
determination of the proceeding.
(d) The judgment of the court shall be subject to review only by
the Supreme Court of the United States upon a writ of certiorari or
certification as provided in section 1254: of title 28, United States
Code.
(e) 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 Secretary or the Panel.
(f) Subject to the direction and control of the Attorney General,
as provided in section 507(b) of title 28 of the United States Code,
attorneys appointed by the Secretary may appear for and represent
him in any proceeding instituted under this section.
POSTING OF NOTICES, ORDERS, AND DECISIONS
SEC. 107. (a) At each coal mine there shall be maintained an office
with a conspicuous sign designating it as the office of the mine, and a
bulletin board at such office or at some conspicuous place near an
entrance of the mine, in such manner that notices, orders, and decisions
required by law or regulation to be posted on the mine bulletin board
may be posted thereon, be easily visible to all persons desiring to read
them, and be protected against damage by weather and against unau-
thorized removal. A copy of any notice, order, or decision required by
this title 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 bul-
letin board of such mine by the operator or his agent.
(b) The Secretary shall cause a copy of any notice, order, or deci-
sion required by this Act to be given to an operator to be mailed imme-
diately to a representative of the miners in the affected mine, and to
the public official or agency of the State charged with administering
State laws, if any, relating to health or safety in such mine. Such
notice. order, or decision shall be available for public inspection.
(c) In order to insure prompt compliance with any notice, order, or
decision issued under this Act, the authorized representative of the
Secretary may deliver such notice, order, or decision to an agent of
the operator and such agent shall immediately take appropriate meas-
ures to insure compliance with such notice, order, or decision.
PAGENO="0186"
868
(d) Each operator of a coal mine 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 mine 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, or decision issued under
this Act affecting such mine. In any case, where the coal mine; is
subject to the control of any person not directly `involved in the daily
operations of the coal 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
mine subject to the control of such person and such official shall re-
ceive a copy of any notice, order, 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.
INJUNCflONS
SEC. 108. The Secretary may institute a civil `action for relief,
including a permanent or temporary injunt~tion, restraining order, or
any other appropriate oi~der in the district court of the United States
for the district in which a coal mine is located or in which the operator
of such mine has his principal office, wherein such operator or his
agent (a) violates or fails or refuses to comply with any order or
decision issued under this Act, or (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, or (c) refuses to admit such
representatives to the mine, or (d) refuses to permit the inspection
of the mine, or the investigation of an accident or occupational disease
occurring in, or connected with, such mine, or (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. Each court shall have jurisdiction to provide such relief as may
be appropriate. Temporary restraining orders shall be issued in ac-
cordance with Rule 65 of the Federal Rules of Civil Procedure, as
amended, except that the time limit in such orders, when issued with-
out notice, shall be seven days from the date of entry. Except as other-
wise provided herein, any relief granted by the court to enforce an
order under clause (a) of this section' 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 actions under this
section, subject to the direction and control of the Attorney General,
as provided in section 507(b) of title 28 of the United States Code,
attorneys appointed by the Secretary may appear for and represent
him. In any action instituted under this section to enforce an order
PAGENO="0187"
869
or decision issued by the Secretary after a public hearing in accord-
* ance with section 554 of title 5 of the United States Code, the findings
of the Secretary, if supported by substantial evidence on the record
considered as a whole, shall be conclusive.
PENALTIES
SEC 109. (a) (1) The operator of a coal mine in which a violation
occurs of a mandatory health or safety standard or who violates any
other provision of this Act, except the provisions of title 4, shall be
assessed a civil penalty by the Secretary under paragraph (3) of this
subsection 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. In determining
the amount of the penalty, the Secretary shall consider the operator's
history of previous violations, the appropriateness of such penalty to
the size of the business of the operator charged, whether the operator
was negligent, the effect on the operator's ability to continue in busi-
ness, the gravity of the violation, and the demonstrated good faith of
the operator charged in attempting to achieve rapid compliance after
notification of a violation.
(2) Any miner who willfully violates the mandatory safety stand-
ards relating to smoking or the carrying of smoking materials,
matches, or lighters shall be subject to a civil penalty assessed by the
Secretary under paragraph (3) of this subsection, which penalty
shall not be more than $250 for each occurrence of such violation.
(3) A civil penalty shall be assessed by the Secretary only after the
person charged with a violation under this Act has been given an
opportunity for a public hearing and the Secretary has determined,
by decision incorporating his findings of fact therein, that a viola-
tion did occur, and the amount of the penalty which is warranted,
and incorporating, when appropriate, an order therein requiring that
the penalty be paid. Where appropriate, the Secretary shall consoli-
date such hearings with other proceedings under section 105 of this
title. Any hearing under this section shall be of record and shall be
subject to section 554 of title 5 of the United States Code.
(4) If the person against whom a civil penalty is assess~d fails to
pay the penalty within the time prescribed in such order, the Secretary
shall file a petition for enforcement of such order in any appropriate
district court of the United States. The petition shall designate the
person against whom the order is sought to be enforced as the respond-
ent. A copy of the petition shall forthwith be sent by registered or
certified mail to the respondent and to the representative of the miners
in the affected mine or the operator, as the case may be, and thereupon
the Secretary shall certify and file in such court the record upon which
such order sought to be enforced was issued. The court shall have
jurisdiction to enter a judgment enforcing, modifying, and enforcing
as so modified, or setting aside in whole or in part the order and
decision of the Secretary or it may remand the proceedings to the
Secretary for such further action as it may direct. The court shall con-
sider and determine de novo all relevant issues, except issues of fact
which were or could have been litigated in review proceedings before
PAGENO="0188"
sm:
a court of appeals under section 106 of this Act, and upon the request
of the respondent, such issues of fact which are in dispute shall be
submitted to a jury. On the basis of the jury's findings, the court shall
determine the amount of the penalty to be imposed. Subject to the
direction and control of the Attorney General, as provided in sec-
tion .507(b) of title 28 of the United States Code, attorneys appointed
by the Secretary may appear for and represent him in any action too
enforce an order assesing civil penalties under this paragraph.
(b) 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 of this title, or any order
incorporated in a final decision issued under this title, except an order
incorporated in a decision under subsection (a) of this section or
section 110(b) (2) of this title, 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 imprison-
ment for not more than five years, or by both.
(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) of this section or section 110
(b) (2) of this title, any director, officer, or agent of such corporation
who knowingly authorized, ordered, or carried out such violation, fail-
ure; or refusal shall be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under subsections
(a) and (b) of this section.
(d) Whoever knowingly makes any false statement, representation,
or certification in any application, record, report, plan, or other docu-
ment filed or required to be maintained pursuant to this Act or any
order or decision issued under this Act shall, upon conviction, be pun-
ished by a fine of not more than $10,000, or by imprisonment for not'
more than six months, or by both.
(e) Whoever knowingly distributes, sells, offers for sale, introduces,"
or delivers in commerce any equipment for use in a coal mine, includ-
ing, but not limited to, components and accessories of such' equip-"
ment, 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 Qomply, shall, upon convic-
tion, be subject to the same fine and imprisonment that may be imposed
upon a person under subsection (d) of this section.
ENTITLEMENT OF' MINEES
SEC. 110. (a) If a coal mine or area of a coal mine is ~ilosed by an
order issued under section 104 of this title, all miners working during
the shift when such order was issued 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 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
PAGENO="0189"
871
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 mine or area of a coal mine is closed by an order
issued under section 104 of this title for an unwarrantable failure of
the operator to comply with any health or safety standard, 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 on such
compensation 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 104 of this Act, all miners employed at the affected mine
who would be withdrawn from, or prevented from entering, such mine
or area thereof as a result of such order shall be entitled to full com-
pensation by the operator at their regular rates of pay, in addition to:
pay received for work performed after such order was issued, for the
period beginning when such order was issued and ending when such
order is complied with, vacated, or terminated.
(b) (1) No person shall discharge or in any other way discriminate
against or cause to be discharged or discriminated against any miner
or any authorized representative of miners by reason of the fact that
such miner or representative (A) has notified the Secretary or his
authorized representative of any alleged violation or danger, (B) has
filed, instituted, or caused to be filed or instituted any proceeding
under this Act, or (C) has testified or is about to testify in any pro-
ceeding resulting from the administration or enforcement of the pro-
visions of this Act.
(2) Any miner or a representative of miners who believes that he
has been discharged or otherwise discriminated against by any person
in violation of paragraph (1) of this subsection may, within thirty
days after such violation occurs, apply to the Secretary for a review
of such alleged discharge or discrimination. A copy of the application
shall be sent to such person who shall be the respondent. Upon receipt
of such application, the Secretary 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 any party to enable
the parties to present information relating to such violation. The
parties shall be given written notice of the time and place of the hear-
ing at least five days prior to the hearing. Any such hearing shall be
of record and shall be subject to section 554 of title 5 of the United
States Code. Upon receiving the report of such investigation, the
Secretary shall make findings of fact. If he finds that such violation
did occur, he shall issue a decision, incorporating an order therein,
requiring the person committing such violation to take such affirma-
tive action to abate the violation as the Secretary deems appropriate,
including, but not limited to, the rehiring or reinstatemeiit of the
miner or representative of miners to his former position with back
pay. If he finds that there was no such vi&ation, he shall issue an order
denying the application. Such order shall incorporate the Secretary's
.fin~lings therein. Any order issued by the Secretary under this para-
graph shall be subject to judicial review in accordance with section
106 of this Act. Violations by any person of paragraph (1) of this
PAGENO="0190"
g72
subsection shall be subject to the provisions of sections 108 and 109 (a).
of this title.
(3) Whenever an order is issued under this subsection, at the request
of the applicant, a sum equal:to: the aggregate amount of all costs and
expenses (including the attorney's fees) as determined by. the Secre-
tary to have been reasonably incurred by: the applicant for, Or in con-
nection with, the institution and prosecution of such proceedings, shall
be assessed against thel person committing such violation.
REPORTS
SEc. 111. (a) All accidents, including unintentional roof falls (ex-
cept in any abandoned panels or in areas which are inaccessible or
unsafe for inspections), shall be investigated by the operator:'or his
agent to determine the cause and the means of preventing a recurrence...
Records of such accidents, roof falls, and investigations shalibe kept
and the informatiOn shall be made available to the Secretary or his
authorized representative and the appropriate State agency. Such
records shall be open for inspection by interested persons. Such rec-
ords shall include man-hours worked and shall be reported for periods
determined by th&.Secretary, but at least annually.
(b) In addition. to such records as are specifically required by this
Act, every operator. of a coal mine shall establish and maintain such
records, make such report.s, and provide such information, as the
Secretary may reasonably. require from time to time to enable him to
perform his functions under this Act. The Secretary is authorized to
compile, analyze, and publish, either in summary or detailed form,
such reports or information so obtained. Except to the extent other-
wise specifically provided by this Act, all records, information, re~
ports, findings, notices, orders, or decisions required or issued pur-
suant to or under this Act may be published from time to time, .may
be released to any interested person, and shall be made available for
public inspection.
TITLE Il-INTERIM MANDATORY HEALTH STANDARDS
COVERAGE
SEC. 201. (a) The provisions of sections 202' through 206 of this title
and the applicable provisions of section 318 of title III shall be interim
mandatory health standards applicable to all underground coal mines
until superseded in whole or in part by improved mandatory health
standards promulgated by the Secretary under the provisions of sec-
tion 101 of this Act, and shall be enforced in the same manner and to
the same extent as any mandatory health standard promulgated under
the provisions of section 101 of this Act. Any orders issued in the
enforcement of the interim standards set forth in this title shall be sub-
ject to review as provided in title I of this Act.
(b) Among other things, it is the purpose of this title to provide, to
the greatest extent possible, that the working conditions in each under-
ground c'oal mine are sufficiently free of respirable dust concentra-
tions in the mine atmosphere to permit each miner the opportunity
to work underground during the period of his entire adult working
life without incurring any disability from pneumoconiosis or any
other occupation~-related disease during or~ at the end of such period.
PAGENO="0191"
873
DUST STANDARD AND RESPIRATORY EQUIPMENT
SEC. 202. (a) Each operator.of a coal mine shall take accurate sam-
ples of the amount of respirable dust in the mine atmosphere to which
each miner in the active workings .of such mine iS exposed. Such
samples shall be taken by any~.device approved by the Secretary and
the Secretary of Health, Education, and Welfare, and in accordance
with such methods, at such :locations, at such intervals, and in such
manner as the Secretaries shall prescrjbe in the Federal Register with-
in sixty days from the date of en~ctiñent of this Act and from time to
time thereafter. Such samples shall be transmitted to the Secretary in
a manner established by him, and analyzed and recorded by him in a
manner that will assure application of.the provisions of section 104(i)
of this Act when the applicable limit on the concentration of respira-.
ble dust required to be maintained underthis section is exceeded. The
result~'of such samples shall also~be made available to the operator.
Each operator shall report and certify to the Secretary at such inter-
vals as the Secretary may require as to the conditions in the active
workings of the coal mine, including; but not limited to, the average
number of working. hours worked during each shift, the quantity and
velocity of air regularly reaching the working faces, the method of
mining, the amount .and pressure of the. water, if any, reaching the
working faces, and the number, location, and type of sprays, if any,
used.
(b) Except as otherwise provided in this subsection-
(1) Effective on the operative date of this title, each operator
shall continuously maintain the average concentration of respira-
ble dust in the mine atmosphere during each shift to which each
miner in the active workings of such mine is exposed at or below
3.0 milligrams of respirable dust per cubic meter of air.
(2) Effective three years after the date of enactment of this Act,
each operator shall continuously maintain the average concentra-
tion of respirable dust in the mine atmosphere during each shift
to which each miner in the active workings of such mine is exposed
at or below 2.0 milligrams of respirable dust per cubic meter of
air.
(3) Any operator who determines that he will be unable, using
available techonolgy, to comply with the provisions of paragraph
(1) of this subsection, or the provisions of paragraph (2) of this
subsection, as appropriate, may file with the Panel, no later than
sixty days prior to the effective date of the applicable respirable
dust standard established by such paragraphs, an application for
a permit for noncompliance with the 3.0 milligram standard
established by paragraph (1) of this subsection, the application
satisfies the requirements of subsection (c) of this section, the
Panel shall issue a permit for noncompliance to the operator. If,
in the case of an application for a permit for noncompliance with
the 2.0 milligram standard established by paragraph (2) of this
subsection, the application satisfies the requirements of subsec-
tion (c) of this section and the Panel determines that the appli-
cant will.be unable to comply with such standard, the Panel shall
issue to the operator a permit for noncompliance.
PAGENO="0192"
~74
(4) In any case in which an operators who has been issued a
permit (including a renewal permit) for noncompliance under
this section, determines, not more than ~rnnety days prior to the
expiration date of such permit, that he still is unable to comply
with the standard established by paragraph (1) of this subsection
or the standard established by paragraph (2) of this subsection,
as appropriate, he may file with the Panel an application for
renewal of the permit. Upon receipt of such application, the Panel,
if it determines, after all interested persons have been notified and
given an opportunity for a public hearing under section 5 of this
Act, that the application is in compliance with the provisions of
subsection (c) of this section, and that the applicant will be unable
to comply with such standard, may renew the permit.
(5) Any such permit or renewal thereof so issued shall be in
effect for a period not to exceed one year and shall entitle the per-
mittee during such period to maintain continuously the average
concentration of respirable dust in the mine atmosphere during
each shift in the working plac~s of such mine to which the permit
applies at a level specified by the Panel, which shall be at the low-
est level which the application shows the conditions, technology
applic~ble to such mine, and other available and effective control
techniques and methods will permit, but in no event shall such level
exceed 4.5 milligrams of dust per cubic meter of air during the
* period when the 3.0 milligram standard is in effect, or 3.0 milli-
grams of dust per cubic meter of air during the period when the
2.0 milligram standard is in effect.
(6) No permit or renewal thereof for noncompliance shall en-
title any operator to an extension of time beyond eighteen months
* from the date of enactment of this Act to comply with the 3.0
milligram standard established by paragraph (1) of this subsec-
tion, or beyond seventy-two months from. the date of enactment
of this Act to comply with the 2.0 milligram standard established
by paragraph (2) of this subsection.
(c) Any application for an initial. Or renewal permit made pur-
~uant to this section shall contain-
(1) a repr~sentation by the applicant and the engineer conduct-
ing the survey referred to in paragraph (2) of this subsection
that the applicant is unable to comply with the standard appli-
cable under subsection (b) (1) or (b) (2) of this section at speci-
fied working places because the technology for reducing the con-
centration of respirable dust at such places is not available, or
because of the lack of other effective control techniques or methods,
or because of any combination of such reasons;
(2) an identification of the working places in such mine for
which the permit is requested; the results of an engineering sur-
vey by a certified engineer of the respirable dust conditions of
each working place of the mine with respect to which such appli-
cation is filed and the ability to reduce such dust to the level re-
quired to be maintained in such place under this section; a descrip-
tion of the ventilation system of the mine and its capacity; the
quantity and velocity of air regularly reaching the working faces;
th~ method of mining; the amount~and pressure of the water, if
PAGENO="0193"
875
any, reaching the working faces; the number, location, and type
of sprays, if any; action taken to reduce such dust; and such other
information as the Panel may require; and
(3) statements by the applicant and the engineer conducting
such survey, of the means and methods to be employed to achieve
compliance with the applicable standard, the progress made to-
ward achieving compliance, and an estimate of. when compliance
can be achieved.
(d) Beginning six months after the operative date of this title and
from. time to time thereafter, the Secretary of Health, Education, and
Welfare shall establish, in accordance with the provisions of section
101 of this Act, a schedule reducing the average concentration of
respirable dust in the mine atmosphere during each shift to which
each miner in the active workings is exposed. below the levels estab-
lished in this section to a level of personal exposure which will prevent
new incidences of respiratory disease and, the further development of
such disease in any person. Such schedule shall specify the minimum
time necessary to achieve such levels taking into consideration present
and future advancements in technology to reach these levels.
(e) References to concentrations of respirable dust in this title
means the average concentration of respirable dust if measured with
an MRE instrument or such equivalent concentrations if measured
with another device approved by the Secretary and the Secretary of
Health, Education, and `Welfare. As used in this title, the term "MRE
instrument" means the gravimetric dust sampler with four channel
horizontal elutriator developed by the Mining Research Establishment
of the National Coal Board, London, England.
(f) For the purpose of this title, the term "average concentration"
means a determination which accurately represents the atmospheric
conditions with regard to respirable dust to which each miner in the
active workings of a mine is exposed (1) as measured, during the 18-
month period following the date of enactment of this Act, over a num-
ber of continuous production shifts to be determined by the Secretary
and the Secretary of Health. Education, and Welfare, and, (2) as meas-
ured thereafter, over a single shift only, unless the Secretary and the
Secretary of Health, Education, and Welfare find, in accordance with
the provisions of section 101 of this Act, that such single shift meas-
urement will not, after applying valid statistical techniques to such
measurement, accurately represent such atmospheric conditions dur-
ing such shift.
(g) The Secretary shall cause to be made such frequent spot inspec-
tions as he deems appropriate of the active workings of coal mines for
the purpose of obtaining compliance with the provisions of this title.
(h) Respiratory equipment approved by the Secretary and the Sec-
retary of Health,~ Education. and Welfare shall be made available to
all p~rsons when~ver exposed to concentrations of respirable dust in
excess of the levels requIred to be maintained under this Act. Use of
respirators shall not be substituted for environmental control measures
in the active workings. Each operator shall maintain a supply of respi-
ratory equipment adequate to deal with occurrences of concentrations
of re~spirable dust in the mine atmosphere in excess of the levels re-
quired to be maintained under this Act.
75623 0 - 74 - pt. 3 - 13
PAGENO="0194"
876
MEDICAL EXAMINATIONS
sEc. 203. (a) The operator of a coal mine shall cooperate with the
Secretary of Health, Education, and Welfare in making available
to each miner working in a coal mine the opportunity to have a chest
roentgenogram within eighteen months after the date of enactment
of this Act, a second chest roentgenog~ram within three years' there-
after, and subsequent chest roentgenograms at such intervals there-
after of not to exceed five years as the Secretary of Health, Education,
and Welfare prescribes. Each' worker who begins work in a' coal mine
for the first time shall be given, as soon as possible after commence
ment of his employment, and again three years later if, he is still
engaged in coal mining, a chest roentgenogram;. and in the event the
second such chest roentgenogram shows evidence of' the development
of pneumonoconiosis the worker shall be given, two years later, if he'is
still engaged in coal mining, an additional chest roentgenogram. All
chest roentgenograms shall be given in accordance with specifications
prescribed by the Secretary of Health, Education, and Welfare and
shall be supplemented by such other tests as the Secretary of Health,
Education, and Welfare deems necessary. The films shall be read and
classified in a manner to be prescribed by the Secretary of Health,
Education, and Welfare; and the results of each reading on each such
person and of such tests shall be submitted to the Secretary and to
the Secretary of Health, Education, and Welfare, and, at the request
of the miner, to his physician. The Secretary shall `also submit such
results to such miner and advise him of his rights under this Act
related thereto. Such specifications, readings, classifications, and tests
* shall, to the' greatest degree possible, be uniform for all `coal mines
and miners in such mines.
(b) (1) On' and after the operative date of this title, any miner
who, in the judgment of the Secretary of Health, Education, and
Welfare based upon such reading or other medical examinations,
shows evidence of the development of pneumoconiosis shall be afforded
the option of transferring' from his position to another position in any
`area of the mine, for such period or periods as may be necessary' to
prevent further development of such disease, where the concentration
of respirable dust in the mine atmosphere is not more than 2.0 miii
grams of dust per cubic meter of air.
(2) Effective three years after the date of enactment of this Act,
any miner who, in the judgment of the Secretary of Health, Educa-
tion, and Welfare based upon such reading or other medical examina-
tions, shows evidence of the development of pneumoconiosis shall `be
afforded the option of transferring from his position to' another posi-
*.tion in any area of the mine, for such period or periods as may be
necessary to prevent further development of such disease, where the
concentration of respirable dust in the mine atmosphere is not more
than 1.0 milligrams of dust per, cubic meter of air, or if such level is
not attainable in such mine, to a position in such mine where the con-
centration of respirable dust is the lowest attainable below 2.0 milli-
grams per cubic meter of air.
(3) Any miner so transferred shall receive compensation for such
work at not less than the regular rate of pay received by him immedi-
ately prior to his transfer.
PAGENO="0195"
877
(c) No payment may be required of any miner in connection with
any examination or test given him pursuant to this title. Where such
examinations or tests cannot be given, due to the lack of adequate med-
ical or other necessary facilities or personnel, in the locality where the
miner resides, arrangements shall be made to have them conducted, in
accordance with the provisions of this title, in such locality by the
Secretary of Health, Education, and Welfare, or by an appropriate
person, agency, or institution, public or private, under an agreement
or arrangement between the Secretary of Health, Education, and
Welfare and such person, agency, or institution. The operator of the
mine shall reimburse the Secretary of Health, Education, and Welfare,
or such person, agency, or institution, as the case may be, for the cost
of conducting each examination or test made, in accordance with this
title,, and shall pay whatever other costs are necessary. to enable the
miner to take such examinations or tests.
(d) If the death of any active miner occurs in any coal mine, or if
the death of any active or inactive miner occurs in any other place, the
Secretary of Health, Education, and Welfare is authorized to provide
for an autopsy to be performed on such miner, with the consent of his
surviving widow or, if he has no such widow, then with the consent
of his surviving next of kin. The results of such autopsy shall be sub-
mitted to the Secretary of Health, Education, and Welfare and, with
the consent of such survivor, to the miner's physician or other inter-
ested person. Such autopsy shall be paid for by the Secretary of
Health, Education, and Welfare.
DUST PROM DRILLING ROCK
SEC. 204. The dust resulting from drilling in rock shall be controlled
by the use of permissible dust collectors, or by water or water with a
wetting agent, or by ventilation, or by any other method or device
approved by the Secretary which is at least as effective in controlling
such dust. Respiratory equipment approved by the Secretary and the
Secretary of Health, Education, and Welfare shall be provided per-
sons exposed for short periods to inhalation hazards from gas, dusts,
fumes, or mist. When the exposure is for prolonged periods, other
measures to protect such persons or to reduce the hazard shall be
taken.
DUST STANDARD WHEN QUARTZ IS PRESENT
SEC. 205. In coal mining operations where the concentration of
respirable dust in the mine atmosphere of any working place con-
tains more than 5 per centum quartz, the Secretary of Health, Educa-
tion, and Welfare shall prescribe an appropriate formula for deter-
mining the applicable respirable dust standard under this title for
such working place and the Secretary shall apply such formula in
carrying out his duties under this title.
NOISE STANDARD
SEC. 206. On and after the operative date of this title, the standards
on noise prescribe dunder the Walsh-Healey Public Contracts Act, as
amended, in effect October 1, 1969, shall be applicable to each coal
mine and each operator of such mine shall comply with them. Within
PAGENO="0196"
878
six months after the date of enactment of this. Act, the Secretary of
Health, Education, and Welfare shall establish, and the Secretary
shall publish, as provided in section 101 of this Act, proposed manda-
tory health standards establishing maximum noise exposure levels .for
all underground coal mines. Beginning six months after the opera-
tive date of this title, and at intervals of at least every six months
thereafter, the operator of each coal mine shall conduct, in a manner
prescribed by the Secretary of Health,..Education, and Welfare, tests
by a. qualified person of the noise level .at the mine and report and
certify the results to the Secretary and the Secretary of Health, .Edu-
cation,. and Welfare. In meeting such standard under this section,.
the operator shall not require the use of any protective device or sys-
tem, including personal devices, which. the Secretary or his authorized
representative finds to be hazardous or cause a hazard to the miners
in such mine.
TITLE ITT-INTERIM MANDATORY SAFETY STANDARDS.:
FOR UNDERGRO1~TND COAL MINES
COV~RAGE.''
SEd 301. (a)' The prOvisions `of sections 30~ `through `318 `of this
title shall be interim mandatory safety standards `applicable to all
underground coal mines until superseded in whole or in part by
improved mandatory safety standards promulgated by the Secretary
under the provisio~is of section 101 of this Act, and shall be enforced in
the `same manner and to the same extent as any mandatory safety
standard promulgated under section 101 of this Act. Any orders issued
in the enforc~ment of the interim standards set forth in this title shall
be subject to review as provided in title I of this Act.
(b) The purpose' of this title is to provide for the immediate applica-
tion of mandatory safety standards developed on the basis of experi-
ence and advances in technology and to prevent newly created hazards
resulting from new technology in coal mining. The Secretary shall
immediately initiate studies, investigations, and research to further
upgrade such standards and to develop and promulgate new and
improved standards promptly that will `provide increased protection
to the ~mir~ers, particularly in connection with hazards from trolley
wires, trolley feeder wires, and signal wires, the splicing and use of
trailing cables and in connection with improvements in vulcanizing of
electric conductors, improvement in roof control measures, methane
drainage in advance of mining, improved methods of measuring meth-
ane and other explosive gases and oxygen concentrations, and the use
of improved underground `equipment and other sources of power for
such equipment.
(c) Upon petition by the operator or the representative of miners,
the Secretary may modify the application of any mandatory safety
standard to a 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 t.han the same measure of protection
afforded the miners of such mine by such standard, or that the applica-
tion 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
PAGENO="0197"
879
shall publish notice thereof and give notice to the operator or the repre-
sentative 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 and the representative of miners in such mine
or other interested party to present information relating to the modifi-
cation of such standard. The Secretary shall issue a decision incorpo-
rating 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
of the United States Code.
(d) In any case where the provisions of sections 302 to 318, inclu-
sive, of this title provide that certain actions, conditions, or require-
ments shall be carried out as prescribed by the Secretary, or the
Secretary of Health, Education, and Welfare, as appropriate, the
provisions of section 553 of title 5 of the United States Code shall
apply unless either Secretary otherwise provides. Before granting any
exception to a mandatory safety standard as authorized by this title,
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 coal mine.
ROOF SUPPORT
SEc. 302. (a) Each operator shall undertake to carry out on a con-
tinuing basis a program to improve the roof control system of each
coal mine and the means and measures to accomplish such systems.
The roof and ribs of all active underground roadways, travelways,
and working places shall be supported or otherwise controlled ade-
quately to protect persons from falls of the roof or ribs. A roof con-
trol plan and revisions thereof suitable to the roof conditions and
mining system of each coal mine and approved by the Secretary shall
be adopted and set out in printed form within sixty days after the
operative date of this title. The plan shall show the type of support
and spacing approved by the Secretary. Such plan shall be reviewed
periodically, at least every six months by the Secretary, taking into
consideration any falls of roof or ribs or inadequacy of support of
roof or ribs. No person shall proceed beyond the last permanent sup-
port unless adequate temporary support is provided or unless such
temporary support is not required under the approved roof control
plan and the absence of such support will not pose a hazard to the
miners. A copy of the plan shall be furnished the Secretary or his
authorized representative and shall be available to the miners and their
representatives.
(b) The method of mining followed in any coal mine shall not
expose the miner to unusual dangers from roof falls caused by exces-
sive widths of rooms and entries or fault pillar recovery methods.
(c) The operator, in accordance with the approved plan, shall pro-
vide at or near each working face and at such other locations in the
coal mine as the Secretary may prescribe an ample supply of suitable
materials of proper size with which to secure the roof of all working
places in a safe manner. Safety posts, jacks, or other approved devices
PAGENO="0198"
880
shall be used to protect the workmen when roof material is being taken
down, crossbars are being installed, roof boitholes are being drilled,
roof bolts are being installed, and in such other circumstances as may
be appropriate~ Loose roof and overhanging or loose faces and ribs
shall be taken down or supported. Except in the case of recovery work,
supports knocked out shall be replaced promptly.
(d) When installation of roof bolts is permitted, such roof bolts
shall be tested in accordance with the approved roof control plan.
(e) Roof bolts shall not be recovered where complete extractions of
pillars are attempted, where adjacent to clay veins, or at the locations
of other irregularities, whether natural or otherwise, that induce ab-
normal hazards. Where roof bolt recovery is permitted, it shall be
conducted only in accordance with methods prescribed in the ap-
proved roof control plan, and shall be conducted by experienced
miners and only where adequate temporary support is provided.
(f) Where miners are exposed to danger from falls of roof, face,
and ribs the operator shall examine and test the roof, face, and ribs
before any work or machine is started, and as frequently thereafter
as may be necessary to insure safety. When dangerous conditions are
found, they shall be corrected immediately.
VENTILATION
~EO. 303, (a) All coal mines shall be ventilated by mechanical ven-
tilation equipment installed and operated in a manner approved by an
authorized representative of the Secretary and such equipment shall
be examined daily and a record shall be kept of such examinations.
(b) All active workings shall be ventilated by a current of air con-
taining not less than 19.5 volume per centum of oxygen, not more than
0.5 volume per centum of carbon dioxide, and no harmful quantities of
other noxious or poisonous gases; and the volume and velocity of the
current of air shall be sufficient to dilute, render harmless, and to carry
away, flammable, explosive, noxious, and harmful gases, and dust, and
smoke and explosive fumes. The minimum quantity of air reaching
the last open crosscut in any pair or set of developing entries and the
last open crosscut in any pair or set of rooms shall be nine thousand
cubic feet a minute, and the minimum quantity of air reaching the in-
take end of a pillar line shall be nine thousand cubic feet a minute. The
minimum quantity of air in any coal mine reaching each working face
shall be three thousand cubic feet a minute. Within three months after
the operative date of this title, the Secretary shall prescribe the mini-
mum velocity and quantity of air reaching each working face of each
coal mine in order to render harmless and carry away methane and
other explosive gases and to reduce the level of respirable dust to the
lowest attainable level. The authorized representative of the Secretary
may require in any coal mine a greater quantity and velocity of air
when he finds it necessary to protect the health or safety of miners.
Within one year after the operative date of this title, the Secretary or
his authorized representative shall prescribe the maximum respirable
dust level in the intake aircourses in each coal mine in order to reduce
such level to the lowest attainable level. In robbing areas of anthracite
mines, where the air currents cannot be controlled and measurements
of the air cannot be obtained, the air shall have perceptible movement.
PAGENO="0199"
881
(c) (1) Properly installed and adequately maintained line brattice
or other approved devices shall be continuously used from the last
open crosscut of an entry or room of each working section to provide
adequate ventilation to the working faces for the miners and to remove
flammable, explosive, and noxious gases, dust, and explosive fumes,
unless the Secretary or his authorized representative permits an excep-
tion to this requirement, where such exception will not pose a hazard
to the miners. When damaged by falls or otherwise, such line brattice
or other devices shall be repaired immediately.
(2) The space between the line brattice or other approved device
and the rib shall be large enough to permit the flow of a sufficient vol-
ume and velocity of air to keep the working face clear of flammable,
explosive, and noxious gases, dust, and explosive fumes.
(3) Brattice cloth used underground shall be of flame-resistant
material.
(d) (1) Within three hours immediately preceding the beginning
of any shift, and before any miner in such shift enters the active work-
ings of a coal mine, certified persons designated by the operator of the
mine shall examine such workings and any other underground area
of the mine designated by the Secretary or his authorized representa-
tive. Each such examiner shall examine every working section in such
workings and shall make tests in each such working section for ac-
cumulations of methane with means approved by the Secretary for
detecting methane and shall make tests for oxygen deficiency with a
permissible flame safety lamp or other means approved by the Secre-
tary; examine seals and doors to determine whether they are function-
ing properly; examine and test the roof, face, and rib conditions in
such working section; examine active roadways, travelways, and belt
conveyors on which men are carried, approaches to abandoned areas,
and accessible falls in such section for hazards; test by means of an
anemometer or other device approved by the Secretary to determine
whether the air in each split is traveling in its proper course and in
normal volume and velocity; and examine for such other hazards and
violations of the mandatory health or safety standards, as an author-
ized representative of the Secretary may from time to time require.
Belt conveyors on which coal is carried shall be examined after each
coal-producing shift has begun. Such mine examiner shall place his
initials and the date and time at all places he examines. If such mine
examiner finds a condition which constitutes a violation of a manda-
tory health or safety standard or any condition which is hazardous to
persons who may enter or be in such area, he shall indicate such
hazardous place by posting a "DANGER" sign conspicuously at all
points which persons entering such hazardous place would be required
to pass, and shall notify the operator of the mine. No person, other
than an authorized representative of the Secretary or a State mine
inspector or persons authorized by. the operator to enter such place
for the purpose of eliminating the hazardous condition therein, shall
enter such place while such sign is so posted. Upon completing his
examination, such mine examiner shall report the results of his
examination to. a person, designated by. the operator to receive such
reports at a designated.station on the surface of the mine, before other
persons enter the underground areas of such mine to work . in such
shift. Each such mine examiner shall also record. the results of his
examination with ink or indelible pencil in a book approved by the
PAGENO="0200"
882
Secretary kept for such purpose in an area on the surface of the
mine chosen by the operator to minimize the danger of destruction by
fire or other hazard, and the record shall be open for inspection by
interested persons.
(2) No person (other than certified persons designated under this
subsection) shall enter any underground area, except during any shift,
unless an examination of such area as prescribed in this subsection
has been made within eight hours immediately preceding his entrance
into such area.
(e) At least once during each coal-producing shift, or more often
if necessary for safety, each working section shall be examined* for
hazardous conditions by certified persons designated by the operator
to do so. Any such condition shall be corrected immediately. If such
condition creates an imminent danger, the operator shall withdraw
all persons from the area affected by such condition to a safe area,
except those persons referred to in section 104(d) of this Act, until the
danger is abated. Such examination shall include tests for methane
with a means approved by th~ Secretary for detecting methane and
for oxygen deficiency with a permissible flame safety lamp or other
means approved by, the Secretary.
(f) In additionS to the pre-shift and daily examinations required by
this section, examinations for hazarous conditions, including tests
for methane, and for compliance with the mandatory health or safety
standards, shall be made at least once each week by a certified person
designated by the operator in the return of each splint of air where it
enters the main return, on pillar falls, at seals, in the main return, at
lease one entry of each intake and return aircourse in its entirety, idle
workings, and, insofar as safety considerations permit, abandoned
areas. Such weekly examination need not be made during any week in
which the time mine is idle for the entire week, except that such exam-
ination shall be made before any other miner returns to the mine. The
person making such examinations and tests shall place his initials and
the date and time at the places examined, and if any hazardous con-
dition is found, such condition shall be reported to the operator
promptly. Any hazardous condition shall be corrected immediately.
If such condition creates an imminent danger, the operator, shall with-
draw all persons from the area affected by such condition to a safe
area, except those persons referred to in section 104(d) of this Act,
until such danger is abated. A record of these examinations, tests, and
actions taken shall be recorded in ink or indelible pencil in a book
approved by the Secretary kept for such purpose in an area on the
surface of the mine chosen by the mine operator to minimize the dan-
ger of destruction by fire or other hazard, and the record shall be open
for inspection by interested persons.
(g) At least once each week, a qualified person shall measure the
volume of air entering the main intakes and leaving the main returns,
the volume passing through the last open crosscut in any pair or set of
developing entries and the last open crosscut in any pair or set of
rooms, the volume and, when the Secretary so prescribes, the velocity
reaching each working face, the volume being delivered to the intake
end of each pillar line, and the volume at the intake and return of each
split of air. A record of such measurements shall be recorded in ink or
indelible pencil in a book approved by the Secretary kept for such
PAGENO="0201"
883
purpose in an area on the surface of the coal mine chosen by the opera-
tor to minimize the danger of destruction by fire or other hazard, and
the record shall be open for inspection by interested persons.
(h) (1) At the start of each shift, tests for methane shall be made
at each working place immediately before electrically operated equip-
ment is energized. Such tests shall be made by qualified persons.
If 1.0 volume per centum or more of methane is detected, electrical
equipment shall not be energized, taken into, or operated in, such
working place until the air therein contains less than 1.0 volume per
centum of. methane. Examinations for methane shall be made during
the operation of such equipment at intervals of not more than twenty
minutes during each shift, unless more frequent examinations are
required by an authorized representative of the Secretary. In con-
ducting such tests, such person shall use means approved by the
Secretary for detecting methane.
(2) If at any time the air at any working place, when tested at a
point not less than twelve inches front the roof, face, or rib, contains
1.0 volume per centum or more of methane, changes or adjustments
shall be made at once in the ventilation in such mine so that such air
shall contain less than 1.0 volume per centum of methane. While such
changes. or adjustments are underway and until they have been
achieved, power to electric face equipment located in such place shall
be cut off, no other work shall be permitted in such place, and due
precautions shall be carried out under the direction of the operator
or his agent so as not to endanger other areas of the mine. If at any
time such air contains 1.5 volume per centum or niore of methane,
all persons, except those referred to in section 104(d) of this Act, shall
be withdrawn from the area of the mine endangered thereby to a safe
area, and all electric power shall be cut off from the endangered area
of the mine, until the air in such working place shall contain less than
1.0 volume per centum of methane.
(i) (1) If, when tested, a split of air returning from any working
section contains 1.0 volume per centum or more of methane, changes
or adjustments shall be made at once in the ventilation in the mine so
that such returning air shall contain less than 1.0 volume per centum
of methane. Tests under this paragraph and paragraph (2) of this
subsection shall be made at four-hour intervals during each shift by
a qualified person designated by the operator of the mine. In making
such tests, such person shall use means approved by the Secretary
for detecting methane.
(2) If, when tested, a split of air returning from any working
section contains 1.5 volume per centum or more of methane, all persons,
except those persons referred to in section 104(d) of this Act, shall
be withdrawn from the area of the mine endangered thereby to a safe
area and all electric power shall be cut off from the endangered area
of the mine, until the air in such split shall contain less than 1.0 vol-
ume per centum of methane.
(3) In virgin territory~ if the quantity of air in a split ventilating
the active workings in such territory equals or exceeds twice the mini-
mum volume of air prescribed in subsection (b) of this section for the
last open crosscut, if the air in the split returning from such workings
does not pass over trolley wires or trolley feeder wires, and if a certi-
PAGENO="0202"
884
fled person designated by the operator is continually testing- the
methane content of the air in such split during mining operations in
such workings, it shall be necessary to withdraw all persons, except
those referred to in section 104(d) of this Act, from the area of the
mine endangered thereby to a safe area and- all electric power shall
be cut off from the endangered area only when the air returning from
such workings contains 2.0 volume per centum or more of methane.
(j) Air which has passed by an opening of - any abandoned area
shall not be used' to ventilate any working place in the coal mine if
such air contains 0.25 volume per centum or more of methane. Exami-
nations of such air shall be made during the pre-shift examination
required by subsection (d) of this section. In making such tests, a
certified person designated by the operator shall use means approved
by the Sec~etary for detecting'methane. For the purposes of this sub-
section, an area within a panel shall not be deemed to be abandoned -
until such panel is abandoned.
(k) Air that has passed through an abandoned area or an area whicn
is inaccessible or unsafe for inspection shall not be used to ventilate -
any working place in any mine. No air which has been used to ventilate -
an area from which the pillars have been removed shall be used to
ventilate any working place in a mine, except that such air, if it does
not contain 0.25 volume per centum or more of methane, may be used to
ventilate enough advancing working places immediately adjacent to -
the line of retreat to maintain an orderly sequence of pillar recovery
on a set entries.
(1) The Secretary or his authorized representative shall require, as'
an additional device for detecting concentrations of methane, that a
methane monitor, approved as reliable by the Secretary after the op-
erative date of this title, be installed, when available, on any electric
face cutting equipment, continuous miner, longwall face equipment, -
and loading machine, except that no monitor shall be required' to be
installed on any such equipment prior to the date on which such equip-'
ment is required to be permissible under section 305 (a) of this title.
When installed on any such equipment, such' monitor shall be kept'
operative and properly maintained and frequently tested as prescribed
by the Secretary. The sensing device of such monitor shall be installed
as close to the working face as practicable. Such' monitor shall be set*
to deenergize automatically such equipment `when such monitor is not
operating properly and to give a warning automatically when the con-
centration' of methane reaches a maximum percentage determined by
an authorized' representative of the Secretary which shall not be more'
than 1.0 volume per centum of methane. An `authorized representative
of the Secretary shall require Such monitor to deenergize automatically
equipment on which it is installed when the concentration of methane
reaches a maximum percentage determined by such representative
which shall not be more than 2.0 volume per centum of methane.
(m) Idle and abandoned areas shall be inspected for methane and
for oxygen deficiency and other dangerous conditions by a certified
person with means approved by the Secretary as soon as possible but
not more than three hours before' other persons are permitted to enter
or wOrk in such areas. Persons, such as pumpmen, who are required
regularly `to enter such areas in the performance of their duties, and
PAGENO="0203"
885
who are trained and qualified in the use of means approved by the
Secretary for detecting methane and in the use of a permissible flame
safety lamp or other means, approved by the Secretary for detecting
oxygen deficiency are authorized to make such examinations for them-
selves, and each such person'shall be properly equipped and shall make
such examinations upon entering any such area.
(n) Immediately before an intentional roof fall is made, pillar work-
ings shall be examined by a qualified person designated by the opera-
tor to ascertain whether methane. is present. Such person shall use
means approved by the Secretary for detecting methane. If in such
examination methane is found in amounts of 1.0 volume per centum
or~more, such roof fall shall not be made until changes or adjustments
are made in the ventilation so that the air shall contain less than 1.0
volume per centum of methane.
(o) A ventilation system and methane and dust control plan and
revisions~thereof suitable to the conditions and the mining system of
the coal mine and approved by the Secretary shall be adopted by the
operator and set out in printed form within ninety days after the opera-
tive date of this. title. The plan shall show the type and location of
mechanical ventilation equipment installed and operated in the mine,
such additional or improved equipment as the Secretary may require
the quantity and velocity of air reaching each working face, and such
other information as the Secretary may require. Such plan shall be
reviewed, by the operator and the Secretary at least every six months
(p) Each operator shall provide for the proper maintenance and
care of the permissible flame safety lamp or any other approved device
for detecting methane and oxygen deficiency by a person trained in
such maintenance, and, before each shift, care shall be taken to insure
that such lamp or other device is in a permissible condition.
*(q) Where areas are being pillared on the operative date of this title
without' bleeder entries, or~ without bleeder systems* or an equivalent
means, pillar recovery may be completed in the area, to the extent
approved by an authorized' representative' of the Secretary, if the
edges `of pillar lines adjacent to active workings are ventilated with
sufficient air to keep the'air in open areas' along the pillar lines below
1.0 volume per centum of methane.'
(r) Each' mechanized mining section shall be ventilated with a sep-
arate split of intake air directed by overcasts, undercasts, or the
equivalent, except an extension of time, not in excess of nine months,
may be permitted by the Secretary, under such conditions as he may
prescribe, whenever he determines that this subsection cannot be
complied' with on the operative date of this title.
(s) In' all underground areas of a coal mine, immediately before
firing each shot or group of multiple shots and after blasting is com-
pleted, examinations for methane shall be made by a qualified person
with means approved by the Secretary for detecting methane. If meth-
ane is found in amounts of 1.0 volume per centum or more, changes
or adjustments shall be made at once in the ventilationso that the air
shall contain less than 1.0 volume per centum of methane. No shots
shall be fired until the air contains less than 1.0 volume per centum
`of methane.
PAGENO="0204"
886
(t) Each operator shall adopt a plan within sixty days after the
operative date of this title which shall provide that when any mine
fan stops, immediate action shall be taken by the operator or his agent
(1) to withdraw all persons from the working sections, (2) to cut off
the power in the mine in a timely manner, (3) to provide for restora-
tion of power and resumption of work if ventilation is restored within
a reasonable period as set forth in the plan after the working places
and other active workings where methane is likely to accumulate are
reexamined by a certified person to determine if methane in amounts
of 1.0 volume per centum or more exists therein, and (4) to provide
for withdrawal of all persons from the mine if ventilation cannot be
restored within such reasonable time. The plan and revisions thereof
approved by the Secretary shall be set out in printed form and a copy
shall be furnished to the Secretary or his authorized representative.
(u) Changes in ventilation which materially affect the main air
current or any split thereof and which may affect the safety of persons
in the coal mine shall be made only when the mine is idle. Only those
persons engaged in making such changes shall be permitted in" the
mine during the change. Power shall be removed from the areas
affected by the change before work starts to make the change and shall
not be restored until the effect of the change has been ascertained and
the affected areas determined to be safe by a certified person.
(v) The mine foreman shall read and countersign promptly~ the
daily reports of the pre-shift examiner and assistant mine foremen,
and he shall read and countersign promptly the weekly report covering
the examinations for hazardous conditions. Where such renorts disclose
hazardous conditions, they shall be corrected promptly. If such condi-
tions create an imminent danger, the operator shall withdraw all
persons from, or prevent any person from entering, as the case may be,
the area affected by such conditions, except those persons referred to
in section 104(d) of this Act, until such danger is abated. The mine
superintendent or assistant superintendent of the mine shall a1so read
and countersign the daily and weekly reports of such persons.
(w) Each day, the mine foreman and each of his assistants shall
enter plainly and sign with ink or indelible pencil in a book approved
by the Secretary provided for that purpose a report of the condition
of the' mine or portion thereof under his supervision~ which report
shall state clearly the location and nature of any hazardous condition
observed by him or reported to him during the day and what action
was taken to remedy such condition. Such book shall be kept in an
area on the surface of the mine chosen by the operator to minimize
the danger of destruction by fire or other hazard, and shall be open
for inspection by interested persons.
(x) Before a coal mine is reopened after having been abandoned or
declared inactive by the operator, the Secretary shall be notified, and
an inspection shall be made of the entire mine by an authorized repre-
sentative of the Secretary before mining operations commence.
(y) (1) In any coal mine opened after the operative date of this
title, the entries used as intake and return aircourses shall be separated
from belt haulage entries, and each operator `of such mine shall limit
the velocity of the air coursed:, through belt haulage' entries to the
amount necessary to provide an" adequate supply of oxygen in such
PAGENO="0205"
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entries, and to insure that the air therein shall contain less than 1.0
volume per centum of methane, and such air shall not be used to venti-
late active working places. Whenever an authorized representative of
the Secretary finds, in the case of any coal mine opened on or prior to
the operative date of this title which has been developed with more
than two entries, that the conditions in the entries, other than belt
haulage entries, are such as to permit adequately the coursing of intake
or return air through such entries, (1) the belt haulage entries shall
not be used to ventilate, unless such entries are necessary to ventilate,
active working places, and (2) when the belt haulage entries are not
necessary to ventilate the active working places, the operator of such
mine shall limit the velocity of the air coursed through the belt haul-
age entries to the. amount necessary to provide an adequate supply of
oxygen in such entries, and to insure that the air therein shall contain
less than 1.0 volume, per centum of methane.
(2) In any coal mine opened on or after the operative date of this
title; or, in the case of a coal mine opened prior to such date, in any
new working section of such mine, where trolley haulage systems are
maintained and where trolley wires or trolley feeder wires are
installed, an authorized representative of the Secretary shall require
a sufficient number of entries or rooms as intake aircourses in order
to limit, as' prescribed by the Secretary, the velocity of air currents
on such haulageways for the purpose of minimizing the hazards asso-
ciated with fires and dust explosions in such haulageways.
(z) (1) While pillars are being extracted in any area of a coal mine,
such area shall be ventilated in the manner prescribed by this section.
(2) `Within nine months after the operative date of this title, all
areas from which pillars have been wholly or partially extracted and
abandoned areas, as determined by the Secretary or his authorized
representative, shall be ventilated by bleeder entries or by bleeder
systems or equivalent means, or be sealed, as determined by the Secre-
tary or his authorized representative. When ventilation of such areas
is required, such ventilation shall be maintained so as continuously to
dilute, render harmless, and carry away methane and other explosive
gases within such areas and to protect the active workings of the mine
from the hazards of such methane and other explosive gases. Air
coursed. through underground areas from which pillars have been
wholly or partially extracted which enters another split of air shall
not contain more than 2.0 volume per centum of methane, when tested
at the point it enters such other split. When sealing is required, such
seals shall be made in an approved manner so as to isolate with
exposion-proof bulkheads such areas from the active workings of the
mine.
In the case of mines opened on or after the operative date of
this `title, or in the case of working sections opened on or after such
date in mines opened prior to such date, the mining system shall be
designed in accordance with a plan and revisions thereof approved by
the Secretary and adopted by such operator so that, as each working
section of the mine is abandoned, it can be isolated from the active
workings of the mine with explosion-proof seals or bulkheads.
PAGENO="0206"
888
COMBUSTIBLE MATERIALS AND ROCK DUSTING
SEC. 304. (a) Coal dust, including float coal dust deposited on rock-
dusted surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings, or
on electric equipment therein.
(b) Where underground mining operations* in active workings
create or raise excessive amounts of dust, water or water with a wet-
ting agent added to it, or other no less effective methods approved by
the Secretary or his authorized representative, shall be used to abate
such dust. In working places, particularly in distances less than forty
feet from the face, water, with or without a wetting agent, or other
no less effective methods approved by the Secretary or his authorized
representative, shall be applied to coal dust on the ribs, roof, and floor
to reduce dispersibility and to minimize the explosion hazard.
(c) All underground areas of a coal mine, except those areas in
which the dust is too wet or too high in incombustible content to propa-
gate an explosion, shall be rock dusted to within forty feet of all
working faces, unless such areas are inaccessible or unsafe to enter or
unless the Secretary or his authorized representative permits an excep-
tion upon his finding that such exception will not pose a hazard to the
miners. All crosscuts that are less than forty feet from a working face
shall also be rock dusted.
(.d) Where rock dust is required to be applied, it shall be distributed
upon the top, floor, and sides of all underground areas of a coal mine
and maintained in such quantities that the incombustible content of
the combined coal dust, rock dust, and other dust shall be not less than
65 per centum, but the incombustible content in the return aircourses
shall be no less than 80 per centum. Where methane is present in any
ventilating current, the per centum of incombustible content of such
combined dusts shall be increased 1.0 and 0.4 per centum for each 0.1
per centum of methane where 65 and 80 per centum, respectively, of
inëombustibles are required.
(e) Subsections (b) through (d) I)f this section shall not apply to
underground anthracite mines.
ELECTRICAL EQUIPMENT-GENERAL
SEC. 305. (a) (1) Effective one year after the operative date of this
title-
(A) all junction or distribution boxes used for making mul-
tiple power connections inby the last open crosscut shall be
permissible;
(B) all handheld electric drills, blower and exhaust fans, elec-
tric pumps, and such other low horsepower electric face equip-
ment as the Secretary may designate within two months after the
operative date of this title which are taken into or used inby the
last open crosscut of any coal mine shall be permissible;
(C) all electric face equipment which is taken into or used
inby the last open crosscut of any coal mine classified under any
provision of law as gassy prior to the operative date of this title
shall be permissible; and
PAGENO="0207"
889
(D) all other electric face equipment which is taken into or
used inby the last crosscut of any coal mine, except a coal mine
referred to in paragraph (2) of this subsection, which has not
been classified under any provision of law as a gassy mine prior
to the operative date of this title shall be permissible.
(2) Effective four years after the operative date of this title, all
electric face equipment, other than equipment referred to in para-
graph (1) (B) of this subsection, which is taken into or used inby
the last open crosscut of any coal mine which is operated entirely in
coal seams located above the water table and which has not been classi-
fied under any provision of law as a gassy mine prior to the operative
date of this title and in which one or more openings were made prior
to the date of enactment of this Act, shall be permissible, except that
any operator of such mine who is unable to comply with the provisions
of this paragraph on such effective date may file with the Panel an
application for a permit for noncompliance ninety days prior to such
date. If the Panel determines, after notice to all interested persons
and an opportunity for a public hearing under section 5 of this Act,
that such application satisfies the provisions of paragraph (10) of this
subsection and that such operator, despite his diligent efforts, will be
unable to comply with such provisions, the Panel may issue to such
operator such a permit. Such permit shall entitle the permittee to an
additional extension of time to comply with the provisions of this
paragraph of not to exceed twenty-four months, as determined by the
Panel, from such effective date.
(3) The operator of each coal mine shall maintain in permissible
condition all electric face equipment required by this subsection to be
permissible which is taken into or used inby the last open crosscut of
any such mine.
(4) Each operator of a coal mine shall, within two months after
the operative date of this title, file with the Secretary a statement
listing all electric face equipment by type and manufacturer being
used by such operator in connection with mining operations in such
mine as of the date of such filing, and stating whether such equip-
ment is permissible and maintained in permissible condition or is
nonpermissible on such date of filing, and, if nonpermissible, whether
such nonpermissible equipment has ever been rated as permissible,
and such other information as the Secretary may require.
(5) The Secretary shall promptly conduct a survey as to the total
availability of new or rebuilt permissible electric face equipment and
replacement parts for such equipment and, within six months alter
the operative date of this title, publish the results of such survey.
(6) Any operator of a coal mine who is unable to comply with the
provisions of paragraph (1) (D) of this subsection within one year
after the operative date of this title may file with the Panel an appli-
cation for a permit of noncompliance. If the Panel determines that
such application satisfies the provisions of paragraph (10) of this
subsection, the Panel shall issue to such operator a permit for non-
compliance. Such permit shall entitle the permittee to an extension
of time to comply with such provisions of paragraph (1) (D) of not
to exceed twelve months, as determined by the Panel, from the date
that compliance with the provisions of paragraph (1) (D) of this
subsection is required.
PAGENO="0208"
890
(7) Any operator of a coal mine issued a permit under paragraph
(6) of this subsection who, ninety days prior to the termination of
such permit, or renewal thereof, determines that he will be unable to
comply with the provisions of paragraph (1) (D) of this subsection
upon the expiration of such permit may file with the Panel an appli-
cation for renewal thereof. Upon receipt of such application, the Panel,
if it determines, after notice to all interested persons and an oppor-
tunity for a public hearing under section 5 of this Act, that such appli-
cation satisfies the provisions of paragraph (10) of this subsection
and that such operator, despite his diligent efforts, will be unable to
comply with the provisions of paragraph (1) (D), may renew the
permit for a period not exceeding twelve months.
(8) Any permit or renewal thereof issued pursuant to this subsec-
tion shall entitle the permittee to use such nonpermissible electric face
equipment specified in the permit during the term of such permit.
(9) Permits for noncompliance issued under paragraphs (6) or (7)
of this subsection shall, in the aggregate, not extend the period of
noncompliance more than forty-eight months after the date of enact-
ment of this Act.
(10) Any application for a permit of noncompliance filed under
this subsection shall contain a statement by the operator-
(A) that he is unable to comply with paragraph (1) (D) or
paragraph (2) of this subsection, as appropriate, within the time
prescribed;
(B) listing the nonpermissible electric face equipment being
used by such operator in connection with mining operations in
such mine on the operative date of this title and the date of the
application by type and manufacturer for which a noncompliance
permit is requested and whether such equipment had ever been
rated as permissible;
(C) setting forth the actions taken from and after the opera-
tive date of this title to comply with paragraph (1) (D) or para-
graph (2) of this subsection, as appropriate, together with a plan
setting forth a schedule of compliance with said paragraphs for
each such equipment referred to in such paragraphs and being
used by the operator in connection with mining operations in such
mine with respect to which such permit is requested and the
means and measures to be employed to achieve compliance; and
(D) including such other information as the Panel may require.
(11) No permit for noncompliance shall be issued under this sub-
section for any nonpermissible electric face equipment, unless such
equipment was being used by an operator in connection with the
mining operations in a coal mine on the operative date of this title.
(12) Effective one year after the operative date of this title, all
replacement equipment acquired for use in any mine referred to in
this subsection shall be permissible and shall be maintained in a per-
missible condition, and in the event of any major overhaul of any
item of equipment in use one year from the operative date of this
title such equipment shall be put in, and thereafter maintained in, a
permissible condition, unless, in the opinion of the Secretary, such
equipment or necessary replacement parts are not available.
(b) A copy of any permit granted under this section shall be mailed
immediately to a representative of the miners of the mine to which it
PAGENO="0209"
891
pertains, and to the public official or agency of the State charged with
administering State laws relating to coal mine health and safety in
such mine.
(c) Any coal mine which, prior to the operative date of this title,
was classed gassy under any provision of law and was required to use
permissible electric face equipment and to maintain such equipment
in a permissible condition shall continue to use such equipment and
to maintain such equipment in such condition.
(d) All power-connection points, except where permissible power
connection units are used, outby the last open crosscut shall be in
intake air.
(e) The location and the electrical rating of all stationary electric
apparatus in connection with the mine electric system, including per-
manent cables, switchgear, rectifying substations, transformers, per-
manent pumps and trolley wires and trolley feeder wires, and settings
of all direct-current circuit breakers protecting underground trolley
circuits, shall be shown on a mine map. Any changes made in a loca-
tion, electric rating, or setting shall be promptly shown on the map
when the change is made. Such map shall be available to an authorized
representative of the Secretary and to the miners in such mine.
(f) All power circuits and electric equipment shall be deenergized
before work is done on such circuits and equipment, except when neces-
sary for trouble shooting or testing. In addition, energized trolley
wires may be repaired only by a person trained to perform electrical
work and to maintain electrical equipment and the operator of such
mine shall require that such person wear approved and tested insulated
shoes and wireman's gloves. No electrical work shall be performed on
low-, medium-, or high-voltage distribution circuits or equipment,
except by a qualified person or by a person trained to perform electri-
cal work and to maintain electrical equipment under the direct super-
vision of a qualified person. Disconnecting devices shall be locked out
and suitably tagged by the person who performed such work, except
that, in cases where locking out is not possible, such devices shall be
opened and suitably tagged by such persons. Locks or tags shall be
removed only by the persons who installed them or, if such persons
are unavailable, by persons authorized by the operator or his agent.
(g) All electrical equipment shall be frequently examined, tested,
and properly maintained by a qualified person to assure safe operating
conditions. When a potentially dangerous condition is found on elec-
tric equipment, such equipment shall be removed from service until
such condition is corrected. A record of such examinations shall be
kept and made available to an authorized representative of the Sec-
retary and to the miners in such mine.
(h) All electric conductors shall be sufficient in size and have ade-
quate current-carrying capacity and be of such construction that a rise
in temperature resulting from normal operation will not damage the
insulating materials.
(i) All electrical connections or splices in conductors shall be me-
chanically and electrically efficient, and suitable connectors shall be
used. All. electrical connections or splices in insulated wire shall be
rernsuiatèd at least to the same degree of protection as the remainder
of the wire.
75623 0 - 74 - pt. 3 - 14
PAGENO="0210"
892
(j) Cables shall enter metal frames of motors, splice boxes; and elec-
tric compartments only through proper fittings. When insulated wires
other than cables pass through metal frames the holes shall be substan-
tially bushed with insulated bushings.
(k) All power wires (except trailing cables on mobile equipment,
specially designed cables conducting high-voltage power to under-
ground rectifying equipment or transformers, or bare or insulated
ground and return wires) shall be supported on well-insulated insu-
lators and shall not contact combustible material, roof, or ribs.
(1) Power wires and cables, except trolley wires, trolley feeder wires,
and bare signal wires, shall be insulated adequately and fully protected.
(m) Automatic circuit-breaking devices or fuses of the correct type
and capacity shall be installed so as to protect all electric equipment
and circuits against short circuit and overloads. Three-phase motors
on all electric equipment shall be provided with overload protection
that will deenergize all three phases in the event that any phase is
overloaded.
(n) In all main power circuits, disconnecting switches shall be in-
stalled underground within five hundred feet of the bottoms of shafts
and boreholes through which main power circuits enter the under-
ground area of the mine and within five hundred feet of all other places
where main power circuits enter the underground area of the mine.
(o) All electric equipment shall be provided with switches or other
controls that are safely designed, constructed, and installed.
(p) Each ungrounded, exposed power conductor that leads under-
groun~1shall be equipped with suitable lightning arresters of approved
type within one hundred feet of the point where the circuit enters the
mine. Lightning arresters shall be connected to a low resistance ground-
ing medium on the surface which shall be separated from neutral
grounds by a distance of not less thaii twenty-five feet.
(q) No device for the purpose of lighting any coal mine which has
not been approved by the Secretary or his authorized representative
shall be permitted in such mine.
(r) An authorized representative of the Secretary may require in
any mine that electric face equipment be provided with devices that
will permit the equipment to be deenergized quickly in the event of
an emergency.
TRAILING CABLES
SEC. 306. (a) Trailing cables used in coal mines shall meet the
requirements established by the Secretary for flame-resistant cables.
(b) Short-circuit protection for trailing cables shall be provided by
an automatic circuit breaker or other no less effective device approved
by the Secretary of adequate current-interrupting capacity in each
undergrounded conductor. Disconnecting devices used to disconnect
power from trailing cables shall be plainly marked and identified and
such devices shall be equipped or designed in such a manner that it
can be determined by visual observation that the power is disconnected.
(c) When two or more trailing cables junction to the same distribu-
tion center, means shall be provided to assure against connecting a
trailing cable to the wrong size circuit breaker.
(d) One temporary splice may be made in any trailing cable. Such
trailing cable may only be used, for the next twenty-four hour period.
PAGENO="0211"
893
No temporary splice shall be made in a trailing cable within twenty-
five feet of the machine, except cable reel equipment. Temporary
splices in trailing cables shall be made in a workmanlike manner and
shall be mechanically strong and well insulated. Trailing cables or
hand cables which have exposed wires or which have splices that heat
or spark under load shall not be used. As used in this subsection, the
term "splice" means the mechanical joining of one or more conductors
that have been severed.
(e) When permanent splices in trailing cables are made, they shall
be-
(1) mechanically strong with adequate electrical conductivity
and flexibility;
(2) effectively insulated and sealed so as to exclude moisture;
and
(3) vulcanized or otherwise treated with suitable materials to
provide flame-resistant qualities and good bonding to the outer
jacket.
(f) Trailing cables shall be clamped to machines in a manner to
protect the cables from damage and to prevent strain on the electrical
connections. Trailing cables shall be adequately protected to prevent
damage by mobile equipment.
(g) Trailing cable and power cable connections to junction boxes
shall not be made or broken under load.
GROUNJ)ING
~ 307. (a) All metallic sheaths, armors, and conduits enclosing
powe 1 eonductors shall be electrically continuous throughout and shall
be grounded by methods approved by an authorized representative of
the Secretary. Metallic frames, casings, and other enclosures of electric
equipment that can become "alive" through failure of insulation or by
contact with energized parts shall be grounded by methods approved
by an authorized representative of the Secretary. Methods other than
grounding which provide no less effective protection may be permitted
by the Secretary or his authorized representative.
(b) The frames of all offtrack direct current maclimes and the
enclosures of related detached components shall be. effectively
grounded, or otherwise maintained at no less safe. voltages, by methods
approved by an authorized representative of the Secretary.
(c) The frames of all stationary high-voltage equipment receiving
power from ungrounded delta systems shall be grounded by methods
approved by an authorized representative of the Secretary.
(d) High-voltage lines, both on the surface and underground, shall
be deenergized and grounded before work is performed on them, except
that repairs may be permitted, in the case of energized surface high-
voltage lines, if such repairs are made by a qualifledperson in accord-
ance with procedures and safeguards, including, but not limited to, a
requirement that the operator of such mine provide, test, and maintain
protective devices, in making such repairs, to be prescribed by. the
Secretary prior to the operative date of this title.
(e) When not in use, power circuits underground shall be deener-
gized on idle days and idle shifts, except that rectifiers and trans-
lormers may remain energized.
PAGENO="0212"
894
UNDERGROUND HIGH-VOLTAGE DISTRIBUTION
SEC. 308. (a) High-voltage circuits entering the underground area
of any coal mine shall be protected by suitable circuit breakers of ade-
quate interrupting capacity which are properly tested and maintained
as prescribed by the Secretary. Such breakers shall be equipped with
devices to provide protection against under-voltage, grounded phase,
short circuit, and overcurrent.
(b) High-voltage circuits extending underground and supplying
portable, mobile, or stationary high-voltage equipment shall contain
either a direct or derived neutral which shall be grounded through a
suitable resistor at the source transformers, and a grounding circuit,
originating at the grounded side of the grounding resistor, shall
extend along with the power conductors and serve as a grounding con-
ductor for the frames of all high-voltage equipment supplied power
from that circuit, except that the Secretary or his authorized repre-
sentative may permit ungrounded high-voltage circuits to be extended
underground to feed stationary electrical equipment if such circuits
are either steel armored or installed in grounded, rigid steel conduit
throughout their entire length, and upon his finding that such excep-
tion does not pose a hazard to the miners. Within one hundred feet of
the point on the surface where high-voltage circuits enter the under-
ground portion of the mine, disconnecting devices shall be installed
and so equipped or designed in such a manner that it can be deter.
mined by visual observation that the power is disconnected, except that
the Secretary or his authorized representative may permit such devices
to be installed at a greater distance from such area of the mine if he
determines, based on existing physical conditions, that such installa-
tion will be more accessible at a greater distance and will not pose any
hazard to the miners.
(c) The grounding resistor, where required, shall be of the proper
ohmic value to limit the voltage drop in the grounding circuit external
to the resistor to not more than 100 volts under fault conditions. The
grounding resistor shall be rated for maximum fault current continu-
ously and insulated from ground for a voltage equal to the phase-to-
phase voltage of the system.
(d) Six months after the operative date of this title, high-voltage,
resistance grounded systems shall include a fail safe ground check cir-
cuit to monitor continuously the grounding circuit to assure continuity
and the fail safe ground checks circuit shall cause the circuit breaker
to open when either the ground or pilot check wire is broken, or other
no less effective device approved by the Secretary or his authorized
representative to assure such continuity, except that an extension of
time, not in excess of twelve months, may be permitted by the Secre-
tary on a mine-by-mine basis if he determines that such equipment .is
not available.
(e) (1) Underground high-voltage cables used in resistance grounded
systems shall be equipped with metallic shields around each power
conductor, with one or more ground conductors having a total cross-
sectional area of not less than one-half the power conductor, and with
an insulated internal or external conductor not smaller than No. 8
(AWG) for the ground continuity check circuit.
PAGENO="0213"
895
(2) All such cables shall be adequate for the intended current and
voltage. Splices made in such cables shall provide continuity of all
components.
(f) Couplers that are used with medium-voltage or high-voltage
power circuits shall be of the three-phase type with a full metallic
shell, except that the Secretary may permit, under such guidelines as
he may prescribe, no less effective couplers constructed of materials
other than metal. Couplers shall be adequate for the voltage and cur-
rent expected. All exposed metal on the metallic couplers shall be
grounded to the ground conductor in the cable. The coupler shall
be constructed so that the ground check continuity conductor shall be
broken first and the ground conductors shall be broken last when the
coupler is being uncoupled.
(g) Single-phase loads, such as transformer primaries, shall be
connected phase to phase.
(h) All underground high-voltage transmission cables shall be in-
stalled only in regularly inspected aircourses and haulageways, and
shall be covered, buried, or placed so as to afford protection against
damage, guarded where men regularly work or pass under them un-
less they are six and one-half feet or more above the floor or rail,
securely anchored, properly insulated, and guarded at ends, and cov-
ered, insulated, or placed to prevent contact with trolley wires and
other low-voltage circuits.
(i) Disconnecting devices shall be installed at the beginning of
branch lines in high-voltage circuits and equipped or designed in such
a manner that it can be determined by visual observation that the cir-
cuit is deenergized when the switches are open.
(j) Circuit breakers and disconnecting switches underground shall
be marked for identification.
(k) In the case of high-voltage cables used as trailing cables, tem-
porary splices shall not be used and all permanent splices shall be
made in accordance with section 306 (e) of this title. Terminations and
splices in all other high-voltage cables shall be made in accordance
with the manufacturer's specifications.
(1) Frames, supporting structures, and enclosures of stationary,
portable, or mobile underground high-voltage equipment and all high-
voltage equipment supplying power to such equipment receiving power
from resistance grounded systems shall be effectively grounded to the
high-voltage ground.
(m) Power centers and portable transformers shall be deenergized
before they are moved from one location to another, except that, when
equipment powered by sources other than such centers or transformers
is not available, the Secretary may permit such centers and trans-
formers to be moved while energized, if he detemines that another
equivalent or greater hazard may otherwise be created, and if they are
moved under the supervision of a qualified person, and if such centers
and transformers are examined prior to such movement by such per-
son and found to be grounded by methods approved by an authorized
representative of the Secretary and otherwise protected from hazards
to the miner. A record shall be kept of such examinations. High-volt-
age cables, other than trailing cables, shall not be moved or handled
at any time while energized, except that, when such centers and trans-
PAGENO="0214"
896
formers are moved while energized as permitted under this subsection,
energized high-voltage cables attached to such centers and transform-
ers may be moved only by a qualified person and the operator of such
mine shall require that such person wear approved and tested insu-
lated wireman's gloves.
UNDERGROUND LOW- AND MEDIUM-VOLTAGE ALTERNATING CURRENT
CIRCUITS
SEc. 309. (a) Low- and medium-voltage power circuits serving three-
phase alternating current equipment shall be protected by suitable
circuit breakers of adequate interrupting capacity which are properly
tested and maintained as prescribed by the Secretary. Such breakers
shall be equipped with devices to provide protection against under-
voltage, grounded phase, short circuit, and over-current.
(b) Low- and medium-voltage three-phase alternating-current cir-
cuits used underground shall contain either a direct or derived neutral
which shall be grounded through a suitable resistor at the power
center, and a grounding circuit, originating at the grounded side of
the grounding resistor, shall extend along with the power conductors
and serve as a grounding conductor for the frames of all the electrical
equipment supplied power from that circuit, except that the Secretary
or his authorized representative may permit ungrounded low- and
medium-voltage circuits to be used imderground to feed such sta-
tionary electrical equipment if such circuits are either steel armored
or installed in grounded rigid steel conduit throughout their entire
length. The grounding resistor, where required, shall be of the proper
ohmic value to limit the ground fault current to 25 amperes. The
grounding resistor shall be rated for maximum fault current con-
tinuously and insulated from ground for a voltage equal to the phase-
to-phase voltage of the system.
(c) Six months after the operative date of this title, low- and
medium-voltage resistance grounded systems shall include a fail safe
ground check circuit to monitor continuously the grounding circuit
to assure continuity which ground check circuit shall cause the circuit
breaker to open when either the ground or pilot check wire is broken,
or other no less effective device approved by the Secretary or his
authorized representative to assure such continuity, except that an
extension of time, not in excess of twelve months, may be permitted
by the Secretary on a mine-by-mine basis if he determines that such
equipment is not available. Cable couplers shall be constructed so that
the ground check continuity conductor shall be broken first and the
ground conductors shall be broken last when the coupler is being
uncoupled.
(d) Disconnecting devices shall be installed in conjunction with the
circuit breaker to provide visual evidence that the power is discon-
nected. Trailing cables for mobile equipment shall contain one or
more ground conductors having a cross sectional area, of not less than
one-half the power conductor, and, six months after the operative date
of this title, an insulated conductor for the ground continuity check
circuit or other no less effective device approved by the Secretary or
his authorized representative to assure such continuity, except that an
PAGENO="0215"
897
extension of time, not in excess of twelve months may be permitted by
the Secretary on a mine-by-mine basis if he determines that such
equipment is not available. Splices made in the cables shall provide
continuity of all components.
(e) Single phase loads shall be connected phase to phase.
(f) Circuit breakers shall be marked for identification.
(g) Trailing cables for medium voltage circuits shall include
grounding conductors, a ground check conductor, and ground metallic
shields around each power conductor or a grounded metallic shield
over the assembly, except that on equipment employing cable reels,
cables without shields may be used if the insulation is rated 2,000 volts
or more.
TROLLEY WIRES AND TROLLEY FEEDER WIRES
SEC. 310. (a) Trolley wires and trolley feeder wires shall be pro-
vided with cutout switches at intervals of not more than 2,000 feet and
near the beginning of all branch lines.
(b) Trolley wires and trolley feeder wires shall be provided with
overcurrent protection.
(c) Trolley wires and trolley feeder wires, high-voltage cables and
transformers shall not be located inby the last open crosscut and shall
be kept at least 150 feet from pillar workings.
(d) Trolley wires, trolley feeder wires, and bare signal wires shall
be insulated adequately where they pass through doors and stoppings,
and where they cross other power wires and cables. Trolley wires and
trolley feeder wires shall be guarded adequately (1) at all points
where men are required to work or pass regularly und~r the wires:
(2) on both sides of all doors and stoppings; and (3) at man-trip sta-
tions. The Secretary or his authorized representatives shall specify
other conditions where trolley wires and trolley feeder wires shall be
adequately protected to prevent contact by any person, or shall require
the use of improved methods to prevent such contact. Temporary
guards shall be provided where trackmen and other persons work in
proximity to trolley wires and trolley feeder wires.
FIRE PROTECTION
SEC. 311. (a) Each coal mine shall be provided with suitable fire-
fighting equipment adapted for the size and conditions of the mine.
The Secretary shall establish minimum requirements for the type,
quality, and quantity of such equipment, and the interpretations of the
Secretary or the Director of the Bureau of Mines relating to such
equipment in effect on the operative date of this title shall continue in
effect until modified or superseded by the Secretary. After every blast-
ing operation, an examination shall be made to determine whether fires
have been started.
(b) Underground storage places for lubricating oil and grease shall
be of fireproof construction. Except for specially prepared materials
approved by the Secretary, lubricating oil and grease kept in all
underground areas in a coal mine shall be in fireproof, closed metal
containers or other no less effective containers approved by the
Secretary.
PAGENO="0216"
898
(c) T~nderground transformer stations, battery-charging stations,
substations, compressor stations, shops, and permanent pumps shall
be housed in fireproof structures or areas. Air current used to venti-
late structures or areas enclosing electrical installations shall be coursed
directly into the return. Other underground structures installed in a
coal mine as the Secretary may prescribe shall be of fireproof
construction.
(d) All welding, cutting, or soldering with arc or flame in all under-
ground areas of a coal mine shall, whenever practicable, be conducted
in fireproof enclosures. Welding, cutting or soldering with arc or flame
in other than a fireproof enclosure shall be done under the supervision
of a qualified person who shall make a diligent search before and dur-
ing such operations, continuously test for methane with means ap-
proved by the Secretary for detecting methane. Welding, cutting, or
soldering shall not be conducted in air that contains 1.0 volume per
centum or more of methane. Rock dust or suitable fire extinguishers
shall be immediately available during such welding, cutting, or
soldering.
(e) Within one year after the operative date of this title, fire sup-
pression devices meeting specifications prescribed by the Secretary
shall be installed* on unattended underground equipment and suitable
fire-resistant hydraulic fluids approved by the Secretary shall be used
in the hydraulic systems of such equipment. Such fluids shall be used
in the hydraulic systems of other underground equipment unless fire
suppression devices meeting specifications prescribed by the Secretary
are installed on such equipment.
(f) Deluge-type water sprays or foam generators automatically
actuated by rise in temperature, or other no less effective means ap-
proved by the Secretary of controlling fire, shall be installed at main
and secondary belt-conveyor drives. Where sprays or foam generators
are used they shall supply a sufficient quantity of water or foam to
control fires.
(g) Underground belt conveyors shall be equipped with slippage
and sequence switches. The Secretary shall, within sixty days after the
operative date of this title, require that devices be installed on all such
belts which will give a warning automatically when a fire occurs
on or near such belt. The Secretary shall prescribe a schedule for
installing fire suppression devices on belt haulageways.
(h) On and after the operative date of this title, all conveyor belts
acquired for use underground shall meet the requirements to be estab-
lished by the Secretary for flame-resistant conveyor belts.
MAPS
SEC. 312. (a) The operator of a coal mine shall have in a fireproof
repository located in an area on the surface of the mine chosen by the
mine operator to minimize the danger of destruction by fire or other
hazard, an accurate and up-to-date map of such mine drawn on scale.
Such map shall show the active workings, all pillared, worked out, and
abandoned areas, except as provided in this section, entries and air-
courses with the direction of airflow indicated by arrows, contour
lines of all elevations, elevations of all main and cross or side entires,
PAGENO="0217"
899
dip of the coalbed, escapeways, adjacent mine workings within one
thousand feet, mines above or below, water pools above and either
producing or abandoned oil and gas wells located within ~ve hundred
feet of such mine and any underground area of such mine, and such
other information as the Secretary may require. Such map shall
identify those areas of the mine which have been pillared, worked
out, or abandoned which are inaccessible or cannot be entered safely
and on which no information is available. Such map shall be made
or certified by a registered engineer or a registered surveyor of the
State in which the mine is located. Such map shall. be kept up to date
by temporary notations and such map shall be revised and supple-
mented at intervals prescribed by the Secretary on the basis of a
survey made or certified by such engineer or surveyor.
(b) The coal mine map and any revision and supplement thereof
shall be available for inspection by the Secretary or his authorized
representative, by cOal mine inspectors of the State in which the
mine is located, by miners in the mine and their representatives and
by operators of adjacent coal mines and by persons owning, leasing,
or residing on surface areas of such mines or areas adjacent to such
mines. The operator shall furnish to the Secretary or his authorized
representative and to the Secretary of Housing and Urban Develop-
ment, upon request, one or more copies of such map and any revision
and supplement thereof. Such map or revision and supplement thereof
shall be kept confidential and its contents shall not be divulged to any
other persons, except to the extent necessary to carry out the provisions
of this Act and in connection with the functions and responsibilities
of the Secretary of Housing and Urban Development.
(c) Whenever an operator permanently closes or abandons a coal
mine, or temporarily closes a coal mine for a period of more than
ninety days, he shall promptly notify the Secretary of such closure.
Within sixty days of the permanent closure or abandonment of the
mine, or, when the mine is temporarily closed, upon the expiration
of a period of ninety days from the date of closure, the operator shall
file with the Secretary a copy of the mine map revised and supple-
mented to the date of the closure. Such copy of the mine map shall be
certified by a registered surveyor or registered engineer of the State
in which the mine is located and shall be available for public inspection.
BLASTING AND EXPLOSIVES
SEC. 313. (a) Black blasting powder shall not be stored or used
underground. Mudcaps (adobes) or other unconfined shots shall not
be fired underground.
(b) Explosives and detonators shall be kept in separate containers
until immediately before blasting. In underground anthracite mines,
(1) mudcaps or other open, unconfined shake shots may be fired, if
restricted to battery starting when methane or a fire hazard is not
present, and if it is otherwise impracticable to start the battery; (2)
open, unconfined shake shots in pitching veins may be fired, when no
methane or fire hazard is present, if the taking down of loose hanging
coal by other means is too hazardous; and (3) tests for methane shall
be made immediately before such shots are fired and if 1.0 volume
PAGENO="0218"
900
per centum or more of methane is present, when~ tested, such shot
shall not be made until the methane content is reduced below 1.0
volume per centum.
(c) Except as provided in this subsection, in all underground areas
of a coal mine only permissible explosives, electric detonators of
proper strength, and permissible blasting devices shall be used and all
explosives and blasting devices shall be used in a permissible manner.
Permissible explosives shall be fired only with permissible shot firing
units. Only incombustible materials shall be used for stemming bore-
holes. The Secretary may, under such safeguards as he may prescribe,
permit the firing of more than twenty shots and allow the use of non-
permissible explosives in sinking shafts and slopes from the surface
in rock. Nothing in this section shall prohibit the use of compressed
air blasting.
(d) Explosives or detonators carried anywhere underground in a
coal mine by any person shall be in containers constructed of non-
conductive material, maintained in good condition, and kept closed.
(e) Explosives or detonators shall be transported in special closed
containers (1) in cars moved by means of a locomotive or rope, (2)
on belts, (3) in shuttle cars, or (4) in equipment designed especially
to transport such explosives or detonators.
(f) `When supplies of explosives and detonators for use in one or
more working sections are stored underground, they shall be kept in
section boxes or magazines of substantial construction with no metal
exposed on the inside, located at least twenty-five feet from roadways
and power wires, and in a dry, well rock-dusted location protected
from falls of roof, except in pitching beds, where it is not possible to
comply with the location requirement, such boxes shall be placed in
niches cut into the solid coal or rock.
(g) Explosives and detonators stored in the working places shall be
kept in separate closed containers which shall be located out of the line
of blast and not less than fifty feet from the working face and fifteen
feet from any pipeline, powerline, rail, or conveyor, except that, if
kept in niches in the rib, the distance from any pipeline, powerline,
rail, or conveyor shall be at least five feet. Such explosives and deto-
nators, when stored, shall be separated by a distance of at least five
feet.
HOISTING AND MANTRIPS
SEC. 314 (a) Every hoist used to transport persons at a coal mine
shall be equipped with overspeed, overwind, and automatic stop con-
trols. Every hoist handling platforms, cages, or other devices used to
transport persons shall be equipped with brakes capable of stopping
the fully loaded platform, cage, or other device; with hoisting cable
adequately strong to sustain the fully loaded platform, cage, or other
device; and have a proper margin of safety. Cages, platforms, or other
devices which are used to transport persons in shafts and slopes shall
be equipped with safety catches or other no less effective devices
approved by the Secretary that act quickly and effectively in an
emergency, and such catches shall be tested at least once every two
months. Hoisting equipment, including automatic elevators, that is
used to transport persons shall be examined daiTy. `Where persons are
transported into, or out of, a coal mine by hoists, a qualified hoisting
PAGENO="0219"
901
engineer shall be on duty while any person is underground, except
that no such engineer shall be required for automatically operated
cages, platforms, or elevators.
(b) Other safeguards adequate, in the judgment of an authorized
representative of the Secretary, to minimize hazards with respect to
transportation of men and materials shall be provided.
(c) Hoists shall have rated capacities consistent with the loads
handled and the recommended safety factors of the ropes used. An
accurate and reliable indicator of the position of the cage, platform,
skip, bucket, or cars shall be provided.
(d) There shall be at least two effective methods approved by the
Secretary of signaling between each of the shaft stations and the hoist
room, one of which shall be a telephone or speaking tube.
(e) Each locomotive and haulage car used in an underground coal
mine shall be equipped with automatic brakes, where space permits.
Where space does not permit automatic brakes, locomotives and haul-
age cars shall be subject to speed reduction gear, or other similar
devices approved by the Secretary which are designed to stop the
locomotives and haulage cars with the proper margin of safety.
(f) All haulage equipment acquired by an operator of a coal mine
on or after one year after the operative date of this title shall be
equipped with automatic couplers which couple by impact and uncou-
ple without the necessity of persons going between the ends of such
equipment. All haulage equipment without automatic couplers in use
in a mine on the operative date of this title shall also be so equipped
within four years after the operative date of this title.
EMERGENCY SHELTERS
SEC. 315. The Secretary or an anthorized representative of the
Secretary may prescribe in any coal mine that rescue chambers, prop-
erly sealed and ventilated, be erected at. suitable locations in the mine
to which persons may go in case of an emergency for protection against
hazards. Such chambers shall be properly equipped with first aid ma-
terials, an adequate supply of air and self-contained breathing equip-
ment, an independent communications system to the surface, and
proper accommodations for the persons while awaiting rescue, and
such other equipment as the Secretary may require. A plan for the
erections maintenance, and revisions of such chambers and the train-
ing of the miners in their proper use shall be submitted by the operator
to the Secretary for his approval.
COMMuNICATIONS
SEC. 316. Telephone service or equivalent two-way communication
facilities, approved by the Secretary or his authorized representative,
shall be provided between the surface and each landing of main shafts
and slopes and between the surface and each working section of any
coal mine that is more than one hundred feet. from a portal.
MISCELLANEOUS
SEC. 317. (a) Each operator of a coal mine shall take reasonable
measures to locate oil and gas wells penetrating coalbeds or any under-
PAGENO="0220"
902
ground area of a coal mine. When located, such' operator shall estab-
lish and maintain barriers around such oil and gas wells in accordance
with State laws and regulations, except. that such barriers shall not be
less than three hundred feet in diameter, unless the Secretary or his
authorized representative permits a lesser barrier consistent with the
applicable State laws and regulations where such lesser barrier will
be adequate to protect against hazards from such wells to the miners
in such mine, or unless the Secretary or his authorized representative
requires a greater barrier where the depth of the mine, other geologic
conditions, or other factors warrant such a greater barrier.
(b) Whenever any working place approaches within fifty feet of
abandoned areas in the mine as shown by surveys made and certified
by a registered engineer or surveyor, or within two hundred feet of
any other abandoned areas of the mine which cannot be inspected and
which may contain dangerous accumulations of water or gas, or
within two hundred feet of any workings of an adjacent mine, a bore-
hole or boreholes shall be drilled to a distance of at least twenty feet
in advance of the working face of such working place and shall be
continually maintained to a distance of at least ten feet in advance
of the advancing working face. When there is more than one borehole,
they shall be drilled sufficiently close to each other to insure that the
advancing working face will not accidentally hole through into ban-
doned areas or adjacent mines. Boreholes shall also be drilled not more
than eight feet apart in the rib of such working place to a distance of
at least twenty feet and at an angle of forty-five degrees. Such rib
holes shall be drilled in one' or both ribs of such working place as may
be necessary for adequate protection of miners in such place.
(c) No person shall smoke, carry smoking materials, matches. or
lighters underground, or smoke in or around oil houses, explosives
magazines, or other surface areas where such practice may cause a
fire or explosion. The operator shall institute a program, approved by
the Secretary, to insure that any person entering the underground
area of the mine does not carry smoking materials, matches, or
lighters.
(d) Persons underground shall use. only permissible electric lamps
approved by the Secretary for portable illumination. No open flame
shall be permitted in the underground area of any coal mine, except
as permitted under section 311(d) of this title.
(e) Within nine months after the operative date of this title, the
Secretary shall propose the standards under which all working places
in a mine shall be illuminated by permissible lighting, within eighteen
months after the promulgation of such standards, while persons are
working in such places.
(f) (1) Except as provided in paragraphs (2) and (3) of this sub-
section, at least two separate and distinct travelable passageways
which are maintained to insure paEsage at all times of any person,
including disabled persons, and which are to be designated as escape-
ways, at least one of which is ventilated with intake air, shall be pro-
vided from each working section continuous to the surface eEcape drift
opening, or continuous to the escape shaft or slope facilities to the
surface, as appropriate, and shall be maintained in safe condition and
properly marked. Mine openings shall be adequately protected to pre-
PAGENO="0221"
903
vent the entrance into the underground area of the mine of surface
fires, fumes, smoke, and flood water. Escape facilities approved by
the Secretary or his authorized representative, properly maintamed
and frequently tested, shall be present at or in each escape shaft or
slope to allow all persons, including disabled persons, to escape quickly
to the surface in the event of an emergency.
(2) WThen new coal mines are opened, not more than twenty miners
shall be allowed at any one tiir~e in any mine until a connection has
been made between the two mine openings, and such connections shall
be made as soon as possible.
(3) When only one mine opening is available, owing to final mining
of pillars, not more than twenty miners shall be allowed in such mine
at any one time, and the distance between the mine opening and work-
ing face shall not exceed five hundred feet.
(4) In the case of all coal mines opened on or after the operative
date of this title, and in the case of all new working sections opened
on or after such date in mines opened prior to such date, the escapeway
required by this section to be ventilated with intake air shall be sepa-
rated from the belt and trolley haulage entries of the mine for the
entire length of such entries to the beginning of each working section,
except that the Secretary or his authorized representative may permit
such separation to be extended for a greater or lesser distance so long
as such extension does not pose a hazard to the miners.
(g) After the operative date of this title, all structures erected on
the surface within one hundred feet of any mine opening shall be of
fireproof construction. Unless structures existing on or prior to such
date which are located within one hundred feet of any mine opening
are of such construction, fire doors shall be erected at effective points
in mine openings to prevent smoke or fire from outside sources endan-
gering miners underground. These doors shall be tested at least
monthly to insure effective operation. A record of such tests shall be
kept in an area on the surface of the mine chosen by the operator
to minimize the danger of destruction by fire or other hazard and
shall be available for inspection by interested persons.
(h) Adequate measures shall be taken to prevent methane and coal
dust from accumulating in excessive concentrations in or on surface
coal-handling facilities, but in no event shall methane be permitted
to accumulate in concentrations in or on surface coal-handling facil-
ities in excess of limits established for methane by the Secretary within
one year after the operative date of this title. `Where coal is dumped
at or near air-intake openings, provisions shall be made to avoid dust
from entering the mine.
(i) Every operator of a coal mine shall provide a program, approved
by the Secretary, of training and retraining of both qualified and certi-
fied persons needed to carry out functions prescribed in this Act.
(j) An authorized representative of the Secretary may require in
any coal mine where the height of the coalbed permits that electric
face equipment, including shuttle cars, be provided with substantially
constructed. ~canopies or cabs to protect the miners operating such
equipment from roof falls and from rib and face rolls.
(k)~ On and after the operative date of this title, the opening of
any cOalmine that is declared inactive by its operator or is perma-
PAGENO="0222"
904
nently closed or abandoned for more than ninety days, shall be sealed
by the operator in a manner prescribed by the Secretary. Openings of
all other mines shall be adequately protected in a manner prescribed
by the Secretary to prevent entrance by unauthorized persons.
(1) The Secretary may require any operator to provide adequate
facilities for the miners to change from the clothes worn underground,
to provide for the storing of such clothes from shift to shift, and to
provide sanitary and bathing facilities. Sanitary toilet facilities shall
be provided in the active workings of the mine when such surface
facilities are not readily accessible to the active workings.
(m) Each operator shall make arrangements in advance for obtain-
ing emergency medical assistance and transportation for injured per-
sons. Emergency communications shall be provided to the nearest point
of assistance. Selected agents of the operator shall be trained in first
aid and first* aid training shall be made available to all miners. Each
coal mine shall have an adequate supply of first aid equipment located
on the surface, at the bottom of shafts and slopes, and at other stra-
tegic locations near the working faces. In fulfilling each of the require-
ments of this subsection, the operator shall meet at least minimum re-
quirements prescribed by the Secretary of Health, Education, and
Welfare. Within two months after the operative date of this title,
each operator shall file with the Secretary a plan setting forth in such
detail as the Secretary may require the manner in which such operator
has fulfilled the requirements in this subsection.
(n) A self-rescue device approved by the Secretary shall be made
available to each miner by the operator which shall be adequate to
protect such miner for one hour or longer. Each operator shall train
each miner in the use of such device.
* (o) The Secretary shall prescribe improved methods of assuring
that miners are not exposed to atmospheres that are deficient in oxygen.
(p) Each operator of a coal mine shall establish a check-in and
check-out system which will provide positive identification of every
person underground, and will provide an accurate record of the per-
sons in the mine kept on the surface of a place chosen to minimize the
danger of destruction by fire or other hazard. Such record shall bear a
number identical to an identification check that is securely fastened
to the lamp belt worn by the person underground. The identification
check shall be made of a rust resistant metal of not less than sixteen
gauge.
(q) The Secretary shall require, when technologically feasible, that
devices to prevent and suppress ignitions be installed on electric face
cutting equipment.
(r) Whenever an operator mines coal from a coal mine opened
after the operative date of this title, or from any new working section
of a mine opened prior to such date~~ in a manner that requires the con-
struction, operation, and maintenance of tunnels under any river,
stream, lake, or other body of water, that is, in the judgment of the
Secretary, sufficiently large to constitute a hazard to miners, such
operator shall obtain a permit from the Secretary which shall include
such terms and conditions as he deems appropriate to protect the safety
of miners working or passing through such tunnels from cave-ins and
PAGENO="0223"
905
other hazards. Such permits shall require, in accordance with a plan
to be approved by the Secretary, that a safety zone be established be-
neath and adjacent to such body of water. No plan shall be approved
unless there is a minimum of cover to be determined by the Secretary,
based on test holes drilled by the operator in a manner to be prescribed
by the Secretary. No such permit* shall be required in the case of any
new working section of a mine which is located under any water re-
source reservoir being constructed by a Federal agency on the date of
enactment of this Act, the operator of which is required by such agency
to operate in a manner that adequately protects the safety of miners
working in such section from cave-ins and other hazards.
(s) An adequate supply of potable water shall be provided for drink-
ing purposes in the active workings of the mine, and such water shall
be carrie& stored, and otherwise protected in sanitary containers.
(t) Within one year after the operative date of this title, the Secre-
tary shall propose standards for preventing explosions from explosive
gases other than methane and for testing for accumulations of such
gases.
DEFINITIONS
SEC. 318. For the purpose of this title and title II of this Act, the
term-
(a) "certified" or "registered" as applied to any person means
a person certified or registered by the State in which the coal mine
is located to perform duties prescribed by such titles, except that,
in a State where no program of certification or registration is
provided or where the program does not meet at least minimum
Federal standards established by the Secretary, such certification
or registration shall be by the Secretary;
(b) "qualified person" means, as the context requires,
(1) an individual deemed qualified by the Secretary and
designated by the operator to make tests and examinations
required by this Act; and
(2) an individual deemed, in accordance with minimum
requirements to be established by the Secretary, qualified by
training, education, and experience, to perform electrical
work, to maintain electrical equipment, and to conduct exam-
inations and tests of all electrical equipment;
(c) "permissible" as applied to-
(1) equipment used in the operation of a coal mine, means
equipment, other than permissible electric face equipment, to
which an approval plate, label, or other device is attached as
authorized by the Secretary and which meets specifications
which are prescribed by the Secretary for the construction
and maintenance of such equipment and are designed ~to
assure that such equipment will not cause a mine explosion
or a mine fire,
(2) explosives, shot firing units, or blasting devices used in
such mine, means explosives, shot firing units, or blasting de-
vices which meet specifications which are prescribed by the
Secretary, and
PAGENO="0224"
906
(3) the manner of use of equipment or explosives, shot
firing units, and blasting devices, means the manner of use
prescribed by the Secretary;
(d) "rock dust" means pulverized limestone, dolomite, gypsum,
anhydrite, shale, adobe, or other inert material, preferably light
colored, 100 per centum of which will pass through a sieve having
twenty meshes per linear inch and 70 per centum or more of
which will pass through a sieve having two hundred meshes per
linear inch; the particles of which when wetted and dried will
not cohere to form a cake which will not be dispersed into sepa-
rate particles by a light blast of air; and which does not contain
more than 5 per centum of combustible matter or more than a
total of 4 per centum of free and combined silica (Si02), or,
where the Secretary finds that such silica concentrations are not
available, which does not contain more than 5 per centum of free
and combined silica;
(e) "anthracite" means coals with a volatile ratio equal to 0.12
or less;
(f) "volatile ratio" means volatile matter content divided by
the volatile matter plus the fixed carbon;
(g) (1) "working face" means any place in a coal mine in which
work of extracting coal from its natural deposit in the earth is
performed during the mining cycle,
(2) "working place" means the area of a coal mine inby the
last open crosscut,
(3) "working section" means all areas of the coal mine from
the loading point of the section to and including the working
faces,
(4) "active workings" means any place in a coal mine where
miners are normally required to work or travel;
(h) "abandoned areas" means sections, panels, and other areas
that are not ventilated and examined in the manner required for
working places under section 303 of this title;
(i) "permissible" as applied to electric face equipment means
all electrically operated equipment taken into or used inby the
last open crosscut of an entry or a room of any coal mine the
electrical parts of which, including, but not limited to, associated
electrical equipment, components, and accessories, are designed,
constructed, and installed, in accordance with the specifications
of the Secretary, to assure that such equipment will not cause a
mine explosion or mine fire, and the other features of which are
designed and constructed, in accordance with the specifications
of the Secretary, to prevent, to the greatest extent possible, other
accidents in the use of such equipment; and the regulations of
the Secretary or the Director of the Bureau of Mines in effect
on the operative date of this title relating to the requirements for
investigation, testing, approval, certification, and acceptance of
such equipment as permissible shall continue in effect until
modified or superseded by the Secretary, except that the Sec-
retary shall provide procedures, including, where feasible, test-
ing, approval, certification, and acceptance in the field by an
authorized representative of the Secretary, to facilitate com-
PAGENO="0225"
007
pliance by an operator with the requirements of section 305 (a)
of this title within the periods prescribed therein;
(j) "low voltage" nieans up to and including 660 volts; "me-
dium voltage" means voltages from 661 to 1,000 volts; and "high
voltage" means more than 1,000 volts;
(k) "respirable dust" means only dust particulates 5 microns
or less in size; and
(1) "coal mine" includes areas of adjoining mines connected
underground.
75-623 0 - 74 - pt. 3 - 15
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908
TITLE IV-BLACK LUNG BENEFITS*
PART A-GENERAL
SEC. 401. Congress finds and declares that there are a significant
number of coal miners living today who are totally disabled due to
pneumoconiosis arising out of employment in one or more of the
Nation's coal mines; that there are a number of survivors of coal
miners whose deaths were due to this disease or who were totally disabled
by this disease at the time of their deaths; and that few States provide
benefits for death or disability due to this disease to coal miners or
their surviving dependents. It is, therefore, the purpose of this title to
provide benefits, in Cooperation with the States, `to coal miners who
are totally disabled due to pneumoconiosis and to the surviving de-
pendents of miners whose death was due to such disease or who were
totally disabled by this disease at the time of their deaths; and to ensure
that in the future adequate benefits are provided to coal miners and
their dependents in the event of their death or total disability due to
pneumoconiosis.
SEC. 402. For purposes of this title-
(a) The term "dependent" means-
(1) a child as defined in subsection (g) with out regard to subpara-
graph (2) (B) (ii) thereof; or
(2) a wife who is a member of the same household as the miner, or
is receiving regular contributions from the miner for her support,
or whose husband is a miner who has been ordered by a court to
contribute to her support, or who meets the requirements of section
216(b) (1) or (2) of the Social Security Act. The determination of
an individual's status as the "wIfe" of a miner shall be made in
accordance with section 216(h) (1) of the Socüil Security Act as if
s'uch miner were the "ineured individual" referred to therein. The
term "wife" also includes a "divorced wife" as defined in section
216(d) (1) of the Social Security Act who is receiving at least one-
half of her support, as determined in accordance with regulations
*Amendments made by Black Lung Benefits Act of 1972 shown in italic t3?pe.
(1)
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2
prescribed by the Secretary, from the miner, or is receiving substan-
tial contributions from the miner (pursuant to a written agreement),
or there is in effect a court order for substantial contributions to her
support from such miner.
(b) The term "pneumoconiosis" means a chronic dust disease of the
lung arising out of employment in a coal mine.
(c) The term "Secretary" where used in part B means the Secretary
of Health, Education, and Welfare, and where used in part C means
the Secretary of Labor.
(d) The term "miner" means any individual who is or was employed
in a coal mine.
(e) The term "widow" includes the wife living with or dependent for
support on the miner at the time of his death, or living apart for reasonable
cause or because of his desertion, or who meets the requirements of section
216(c), (1), (2), (3), (4), or (5), and section 216(k) of the Social Secu-
rity Act, who is not married. The determination of an individual's status
as the "widow" of a miner shall be made in accordance with section 216
(h) (1) of the Social Security Act as if such miner were the "insured indi-
vidual" referred to therein. Such term also includes a "surviving divorced
w'~fe" as defined in section 216(d) (2) of the Social Security Act who for
the month preceding the month in which the miner died, was receiving at
least one-half of her support, as determined in accordance with regulations
prescribed by the Secretary, from the miner, or was receiving substantial
contributions from the miner (pursuant to a written agreement) or there
was in effect a court order for substantial contributions to her support
from the miner at the time of his death.
(f) The term "total disability" has the meaning given it by regulation of
the Secretary of Health, Education, and Welfare, except that such regula-
tions shall provide that a miner shall be considered totally disabled when
pneumoconiosis prevents him from engaging in gainful employment
requiring the skills and abilities comparable to those of any employment in
a mine or mines in which he previously engaged with some regularity and
over a substantial period of time. Such regulations shall not provide more
restrictive criteria than those applicable under section 223(d) of the Social
Security Act.
(g) The term "child" means a child or a stev-child who is-
(1) unmarried; and
(2)(A) under eighteen years of age, or
(B)(i) under a disability as defined in section 223(d) of the Social
Security Act,
(ii) which began before the age specified in section 202(d) (1) (B) (ii)
of the Social Security Act, or, in the case of a student, before he ceased
to be a student; or
(U) a student.
The term "student" means a "full-time student" as defined in section
202(d) (7) of the Social Security Act, or a "student" as defined in section
8101(17) of title 5, United States Code. The determination of an indi-
vidual's status as the "child" of the miner or widow, as the case may be,
shall be made in accordance with section 216(h) (2) or (3) of the Social
Security Act as if such miner or widow ucre the "insured individual"
referred to therein.
PAGENO="0228"
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3
PART B-CLAIMS FOR BENEFITS FILED ON OR BEFORE
DECEMBER 31, 1973
SEC. 411. (a) The Secretary shall, in accordance with the provisions
of this part, and the regulations promulgated by him under this part,
make payments of benefits in respect of total disability of any miner
due to pneumoconiosis, and in respect of the death of any miner whose
death was due to pneumoconiosis or who at the time of his death was
totally disabled by pneumoconiosis.
(b) The Secretary shall by regulation prescribe standards for
determining for purposes of section 411(a) whether a miner is totally
disabled due to pneumoconiosis and for determining whether the
death of a miner was due to pneumoconiosis. Regulations required by
this subsection shall be promulgated and published in the Federal
Register at the earliest practicable date after the date of enactment
of this title, and in no event later than the end of the third month
following the month in which this title is enacted. Final regulations
required for implementation of any amendments to this title shall be pro-
mulgated and published in the Federal Register at the earliest practicable
date after the date of enactment of such amendments, and in no event
later than the end of the fourth month following the month in which such
amendments are enacted. Such regulations may be modified or addi-
tional regulations promulgated from time to time thereafter.
(c) For purposes of this section-
(1) if a miner who is suffering or suffered from pneumoconiosis
was employed for ten years or more in one or more coal mines
there shall be a rebuttable presumption that his pneumoconiosis
arose out of such employment;
(2) if a deceased miner was employed for ten years or more in
one or more coal mines and died from a respirable disease there
shall be a rebuttable presumption that his death was due to
pneumoconiosis;
(3) if a miner is suffering or suffered from a chronic dust disease
of the lung which (A) when diagnosed by chest roentgenogram,
yields one or more large opacities (greater than one centimeter in
diameter) and would be classified in category A, B, or C in the
International Classification of Radiographs of the Pneumo-
conioses by the International Labor Organization, (B) when
diagnosed by biopsy or autopsy, yields massive lesions in the lung,
or (C) when diagnosis is made by other means, would be a condi-
tion which could reasonably be expected to yield results described
in clause (A) or (B) if diagnosis had been made in the manner
prescribed in c1au~e (A) or (B), then there shall be an irrebuttable
presumption that he is totally disabled due to pneumoconiosis or
that his death was due to pneumoconiosis, or that at the time of his
death he was totally disabled by pneumoconiosis, as the case may be;
and
(4) if a miner was employedfor fifteen years or more in one or more
underground coal mines, and if there is a chest roentgenogram sub-
mitted in connection with such miner's, his widow's, his child's, his
parent's, his brother's, his sister's or his dependent's claim under this
title and it is interpreted as negative with respect to the requirements of
PAGENO="0229"
911
4
paragraph (3) of this subsection, and if other evidence demonstrates
the existence of a totally disabling respiratory or pulmonary impair-
ment, then there shall be a rebuttable presumption that such miner is
totally disabled due to pneumoconiosis, that his death was due to
pneumoconiosis, or that at the time of his death he was totally disabled
by pneumoconiosis. In the case of a living miner, a wife's affidavit may
not be used by itself to establish the presumption. The Secretary shall
not apply all or a portion of the requirement of this paragraph that
the miner work in an underground mine where he determines that
conditions of a miner's employment in a coal mine other than an
underground mine were substantially similar to conditions in an
underground mine. The Secretary may rebut such presumption only
by establishing that (A) such miner does not, or did not, have
pneumoconiosis, or that (B) his respiratory or pulmonary impair-
ment did not arise out of, or in connection with, employment in a
coal mine.
(d) Nothing in subsection (c) shall be deemed to affect the applica-
bility of subsection (a) in the case of a claim where the presumptions
proved for therein are inapplicable.
SEC. 412. (a) Subject to the provisions of subsection (b) of this
section, benefit payments shall be made by the Secretary under this
part as follows:
(1) In the case of total disability of a miner due to pneumoconiosis,
the disabled miner shall be paid benefits during the disability at a rate
equal to 50 per centum of the minimum monthly payment to which a
Federal employee in grade GS-2, who is totally disabled, is entitled at
the time of payment under chapter 81 of title 5, United States Code.
(2) In the case of death of a miner due to pneumoconiosis or of a
miner receiving benefits under this part, benefits shall be paid to his
widow (if any) at the rate the deceased miner would receive such
benefits if he were totally disabled.
(3) In the case of the child or children of a miner whose death is due to
pneumoconiosis or of a miner who is receiving benefits under this part at
the time of his death, or who was totally disabled by pneumoconiosis at the
time of his death, and in the case of the child or children of a widow who is
receiving benefits under this part at the time of her death, benefits shall be
paid to such child or children as follows: If there is one such child, he shall
be paid benefits at the rate specified in paragraph (1). If there is more than
one such child, the benefits paid shall be divided equally among them and
shall be paid at a rate equal to the rate specified in paragraph (1), in-
creased by 50 per centum of such rate if there are two such children, by 75
per centum of such rate if there are three such children, and by 100 per
centum of such rate if there are more than three children: Provided, That
benefits shall only be paid to a child for so long as he meets the criteria for
the term "child" contained in section 402(g): And provided furt her, That no
entitlement to benefits as a child shall be established under this paragraph
(3) for any month for which entitlement to benefits as a widow is established
under paragraph (2).
(4) In the case of an individual entitled to benefit payments under
clause (1) or (2) of this subsection who has one or more dependents,
the benefit payments shall be increased at the rate of 50 per centum
of such benefit payments, if such individual has one dependent, 75
PAGENO="0230"
912
5
per centum if such individual has two dependents, and 100 per centum
if such individual has three or more dependents.
(5) In the case of the dependent parent or parents of a miner whose
death is due to pneumoconiosis, or of a miner who is receiving benefits
under this part at the time of his death, or of a miner who was totally
disabled by pneumoconios'1~s at the time of his death, and who is not
survived at the time of his death by a widow or a child, or in the case of
the dependent surviving brother(s) or sister(s) of such a miner who is not
survived at the time of his death by a widow, child, or parent, benefits shall
be paid under this part to such parent(s), or to such brother(s), or sister(s),
at the rate speciñed in paragraph (3) (as if such parent(s) or such
brother(s) or sister(s), were the children of such miner). In determining
for purposes of this paragraph whether a claimant bears the relationship
as the miner's parent, brother, or sister, the Secretary shall apply legal
standards consistent with those applicable to relationship determination
under Title II of the Social Security Act. No benefits to a sister or brother
shall be payable under this paragraph for any month beginning with the
month in which he or she receives support from his or her spouse, or
marries. Benefits shall be payable under this paragraph to a brother only
~f he is-
(1) (A) under eighteen years of age, or
(B) under a disability as defined in section f~23(d) of the Social
Security Act which began before the age specified in section 202(d) -
(1) (B) (ii) of such Act, or in the case of a student, before he ceased
to be a student, or
(C) a student as defined in section 402(g); or
(2) who is, at the time of the miner's death, disabled as deter-
mined in accordance with section 223(d) of the Social Security
Act, during such disability. Any benefit under this paragraph for
a month prior to the month in which a claim for such benefit i~
filed shall be reduced to any extent that may be necessary, so tf.~r
it will not render erroneous any benefit which, before the fil~m~
of such claim, the Secretary has certified for payment for such prt ~i'
months. As used in this paragraph, "dependent" means that during
the one year period prior to and ending with such miner's death, such
parent, brother, or sister was living in the miner's household, and
was, during such period, totally dependent on the miner for support.
Proof of such support shall be filed by such claimant within two years
after the month in which this amendment is enacted, or within two
years after the miner's death, whichever is the later. Any such proof
which is filed after the expiration of such period shall be deemed to
have been filed within such period if it is shown to the satisfaction
of the Secretary that there was good cause for failure to file such
proof within such period. The determination of what constitutes
"living in the miner's household", "totally dependent upon the miner
*for support," and "good cause," shallfor purposes of this paragraph
be made in accordance u3ith regulations of the Secretary. Benefit
payments under this paragraph to a parent, brother, or sister, shall
be reduced by the amount by w/iich such payments would be reduced
on account of excess earnings of such parent, brother, or sister,
respectively, under section 203(b)-(l) of the Social Security Act, as
if the benefit under this paragraph were a benefit under section 202
of such Act.
PAGENO="0231"
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6
(6) If an individual's benefits would be increased under paragraph (4)
of this subsection because he or she has one or more dependents, and it
appears to the Secretary that it would be in the interest of any such de-
pendent to have the amount of such increase in benefits (to the extent
attributable to such dependent) certified to a person other than such
individual, then the Secretary may, under regulations prescribed by him,
certify the amount of such increase in benefits (to the extent so attributable)
not to such individual but directly to such dependent or to another person
for the use and benefit of such dependent; and any payment made under
this clause, if otherwise valid under this title, shall be a complete settle-
ment and satisfaction of all claims, rights, and interests in and to such
payment.
(b) Notwithstanding subsection (a), benefit payments under this
section to a miner or his widow, child, parent, brother, or sister, shall be
reduced, on a monthly or other appropriate basis, by an amount
equal to any payment receivcd by such miner or his widow, child,
parent, brother, or sister, under the workmen's compensation, unem-
ployment compensation, or disability insurance laws of his State on
account of the disability of such miner, and the amount by which
such payment would be reduced on account of excess earnings of such
miner under section 203(b) through (1) of the Social Security Act if
the amount paid were a benefit payable under section 202 of such Act.
This part shall not be considered a workmen's compensation law or plan
for purposes of section 224 of such Act.
(c) Benefits payable under this part shall be deemed not to be
income for purposes of the Internal Revenue Code of 1954.
SEC. 413. Except as otherwise provided in section 414 of this
part, no payment of benefits shall be made under this part except pur-
suant to a claim filed therefor on or before December 31, 1973, in
such manner, in such form, and containing such information, as the
Secretary shall by regulation prescribe.
(b) In carrying out the provisions of this part, the Secretary shall
to the maximum extent feasible (and consistent with the provisions of
this part) utilize the personnel and procedures he uses in determining
entitlement to disability insurance benefit payments under section 223
of the Socia' Security Act, but no claim for benefits under this part shall
be denied solely on the basis of the results of a chest roentgenogram. In
determining the validity of claims under this part, all relevant evidence
shall be considered, including, where relevant, medical tests such as blood
gas studies, X-ray examination, electrocardiogram, pulmonary function
studies, or physical performance tests, and any medical history, evidence
submitted by the claimant's physician, or his wife's affidavits, and in the
case of a deceased miner, other appropriate affidavits of persons with
knowledge of the miner's physical condition, and other supportive ma -
terials. Claimants under this part shall be reimbursed for reasonable
medical expenses incurred by them in establishing their claims. For
purposes of determining total disability under this part, the provisions
of subsections (a), (b), (c), (d), and (g) of section 221 of such Act shall
be applicable. The provisions of sections 204, 205 (a), (b), (d), (e), (f),
(g), (h), (j), (k), and (1), 206, 207, and 208 of the Social Security Act
shall be applicable under this part with respect to a miner, widow, child,
parent, brother, sister, or dependent, as if benefits under this part were
benefits under title II of such Act.
PAGENO="0232"
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7
(c) No claim for benefits under this section shall be considered
unless the claimant has also filed a claim under the applicable State
workmen's compensation law prior to or at the same time his claim
was filed for benefits under this section; except that the foregoing pro-
visions of this paragraph shall not apply in any case in which the filing
of a claim under such law would clearly be futile because the period
within which such a claim may be filed thereunder has expired or
because pneumoconiosis is not compensable under such law, or in any
other situation in which, in the opinion of the Secretary, the filing of
a claim would clearly be futile.
SEC. 414. (a) (1) No claim for benefits under this part on account of
total disability of a miner shall be considered unless it is filed on or
before December 31, 1973, or, in the case of a claimant who is a widow,
within six months after the death of her husband or by December 31,
1973, whichever is the later.
(2) In the case of a claim by a child this paragraph shall apply,
notwithstanding any other provision of this part.
(A) If such claim is filed within six months following the month in which
this paragraph is enacted, and if entitlement to benefits is established
pursuant to such claim, such entitlement shall be effective retroactively
from December 30, 1969, or from the date such child would have been first
eligible for such benefit payments had section 412(a) (3) been applicable
since December 30, 1969, whichever is the lesser period. If on the date
such claim is filed the claimant is not eligible for benefit payments, but
was eligible at any period of time during the period from December 30,
1969, to the date such claim is liled, entitlement shall be effective for the
duration of eligibility during such period.
(B) If such claim is filed after six months following the month in which
this paragraph is enacted, and if entitlement to benefits is established
pursuant to such claim, such entitlement shall be effective retroactively
from a date twelve months preceding the date such claim is filed, or from
the date such child would have been first eligible for such benefit payments
had section 412(a) (3) been applicable since December 30, 1969, whichever
is the lesser period. If on the date such claim is filed the claimant is not
eligible for benefit payments, but was eligible at any period of time during
the period from a date twelve months preceding the date such claim is filed,
to the date such claim is filed, entitlement shall be effective for the duration
of eligibility during such period.
(C) No claim for benefits under this part, in the case of a claimant who
is a child, shall be considered unless it is filed within six months after the
death of his father or mother (whichever last occurred) or by December 31,
1973, whichever is the later.
(D) Any benefit under subparagraph (A) or (B) for a month prior to
the month in which a claim is filed shall be reduced, to any extent that
may be necessary, so that it will not render erroneous any benefit which,
before the filing of such claim, the Secretary has certified for payment for
such prior month.
(3) No claim for benefits under this part, in the case of a claimant who
is a parent, brother, or sister shall, be considered unless it is filed within
six months after the death of the miner or by December 31, 1973, whichever
is the later.
(b) No benefits shall be paid under this part after December 31,
1973, if the claim theref or was filed after June 30, 1973.
PAGENO="0233"
915
8
(c) No benefits uiider this part shall be payable for any period prior
to the date a claim theref or is filed.
(d) No benefits shall be paid under this part to the residents of any
State which, after the date of enactment of this Act, reduces the bene-
fits payable to persons eligible to receive benefits under this part,
under its State laws which are applicable to its general work force
with ~regard to workmen's compensation, unemployment compensa-
tion, or disability insurance.
(e) No benefits shall be payable to a widow, child, parent, brother,
or sister under this part on account Of the death of a miner unless (1)
benefits under this part were being paid to such miner with respect
to disability due to pneumoconiosis prior to his death, or (2) the death
of such miner occurred prior to January 1, 1974.
SEC. 415. (a) Notwithstanding any other provision in this title, for the
purpose of assuring the uninterrupted receipt of benefits by claimants at
such time as responsibility for administration of the benefits program is
assumed by either a State workmen's compensation agency or the Secretary
of Labor, any claim for benefits under this part filed during the period
from July 1, 1973, to December 31, 1973, shall be considered and deter-
mined in accordance with the procedures of this section. With respect to
any such claim-
(1) Such claim shall be determined and, where appropriate under
this part or section 424 of this title, benefits shall be paid with respect
to such claim by the Secretary of Labor.
(2) The manner and place of filing such claim shall be in accord-
ance with regulations issued jointly by the Secretary of Health, Edu-
cation and Welfare and the Secretary of Labor, which regulations shall
provide, among other things, that such claims may be filed in district
offices of the Social Security Administration and thereafter trans-
ferred to the jurisdiction of the Department of Labor for further
consideration.
(3) The Secretary of Labor shall promptly notify any operator who
he believes, on the basis of information contained in the claim, or any
other information available to him, may be liable to pay benefits to the
claimant under part C of this title for any month after December 31,
1973.
(4) In determining such claims, the Secretary of Labor shall, to the
extent appropriate, follow the procedures described in sections 19 (b),
(c), and (d) of Public Law 803, 69th Congress (44 Stat. 1424,
approved March 4, 1927), as amended.
(5) Any operator who has been notified of the pendency of a claim
under paragraph 4 qf this subsection shall be bound by the determina-
tiort of the Secretary of Labor on such claim as if the claim had been
filed pursuant to part C of this title and section .&22 thereof had been
applicable to such operator. Nothing in this paragraph shall require
any operator to pay any benefits for any month prior to January 1,
1974.
(b) The Secretary of Labor, after consultation with the Secretary of
Health, Education, and Welfare, may issue such reg~dations as are
necess~ary or appropriate to carry out the purpose of this section.
PAGENO="0234"
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9
PART C-CLAIMS FOR BENEFITS AFTER DECEMBER 31, 1973
SEC. 421. (a) On and after January 1, 1974 any claim for benefits
for death or total disability due to pneumoconiosis shall be filed
pursuant to the applicable State workmen's compensation law, except
that during any period when miners or their surviving widows,
children, parents, brothers, or sisters, as the case may be, are not covered
by a State workmen's compensation law which provides adequate
coverage for pneumoconiosis they shall be entitled to claim benefits
under this part.
(b) (1) For purposes of this section, a State workmen's compensa-
tion law shall not be deemed to provide adequate coverage for pneu-
moconiosis during any period unless it is included in the list of State
laws found by the Secretary to provide such adequate coverage during
such period. The Secretary shall, no later than October 1, 1972, pub-
lish in the Federal Register a list of State workmen's compensation
laws which provide adequate coverage for pneumoconiosis and shall
revise and republish in the Federal Register such list from time to
time, as may be appropriate to reflect changes in such State laws due
to legislation or judicial or administrative interpretation.
(2) The Secretary shall include a State workmen's compensation
law on such list during any period only if he finds that during such
period under such law-
(A) benefits must be paid for total disability or death of a miner
due to pneumoconiosis;
(B) the amount of such cash benefits is substantially equivalent
to or greater than the amount of benefits prescribed by section
412 (a) of this title;
(C) the standards for determining death or total disability due
to pneumoconiosis are substantially equivalent to section 4O~(f)
of this title and to those standards established under part B of this
title, and by the regulations of the Secretary of Health, Education,
and Welfare promulgated thereunder;
(D) anyclaim for benefits on account of total disability or death
of a miner due to pneumoconiosis is deemed to be timely filed if
such claim is filed within three years of the discovery of total
disability due to pneumoconiosis, or the date of such death, as the
case may be;
(E) there are in effect provisions with respect to prior and
successor operators which are substantially equivalent to the
provisions contained in section 422(i) of this part; and
(F) there are applicable such other provisipns, regulations or
interpretations, which are consistent with the provisions contained
in Public Law 803, 69th Congress (44 Stat. 1424, approved
March 4, 1927), as amended, which are applicable under section
422(a), but are not inconsistent with any of the criteria set forth
in subparagraphs (A) through (E) of this paragraph, as the Secre-
tary, in accordance with regulations promulgated by him, deter-
mines to be necessary or appropriate to assure adequate com-
pensation for total disability or death due to pneumoconios~s.
PAGENO="0235"
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10
The action of the Secretary in including or failing to include any State
workmen's compensation law on such list shall be subject to judicial
review exclusively in the United States court of appeals for the circuit
in which the State is located or the United States Court of Appeals for
the District of Columbia.
(c) Final regulations required for implementation of any amendments
to this part shall be promulgated and published in the Federal Register at
the earliest practicable date after the date of enactment of such amendments,
and in no event later than the end of the sixth month following the month in
which such amendments are enacted.
SEc. 422. (a) During any period after December 31, 1973, in which
a State workmen's compensation law is not included on the list pub-
lished by the Secretary under section 421 (b) of this part, the provisions
of Public Law 803, 69th Congress (44 Stat. 1424, approved March 4,
1927), as amended (other than the provisions contained in sections
1, 2, 3, 4, 8, 9, 10, 12, 13, 29, 30, 31, 32, 33, 37, 38, 41, 43, 44, 45, 46,
47, 48, 49, 50, and 51 thereof) shall (except as otherwise provided in
this subsection and except as the Secretary shall by regulation other-
wise provide), be applicable to each operator of a coal mine in such
State with respect to death or total disability due to pneumoconiosis
arising out of employment in such mine. In administering this part,
the Secretary is authorized to prescribe in the Federal Register such*
additional provisions, not inconsistent with those specifically excluded
by this subsection, as he deems necessary to provide for the payment
of benefits by such operator to persons entitled thereto as provided in
this part and thereafter those provisions shall be applicable to such
operator.
(b) During any such period each such operator shall be liable for
and shall secure the payment of benefits, as provided in this section
and section 423 of this part.
(c) Benefits shall be paid during such period by each such operator
under this section to the categories' of persons entitled to benefits under
section 412(a) of this title in accordance with the regulations of the
Secretary and the Secretary of Health, Education, and Welfare ap-
plicable under this section: Provided, That, except as provided in sub-
section (i) of this section, no benefit shall be payable by any operator
on account of death or total disability due to pneumoconiosis which
did not arise, at least in part, out of employment in a mine during the
period when it was operated by such operator.
(d) Benefits payable under this section shall be paid on a monthly
basis and, except as otherwise provided in this section, such payments
shall be equal to the amounts specified in section 412(a) of this title.
(e) No payment of benefits shall be required under this section:
(1) except pursuant to a claim filed theref or in such manner,
in such form, and containing such information, as the Secretary
shall by regulation prescribe;
(2) for any period prior to January 1, 1974; or
(3) for any period after twelve years after the date of enactment
of this Act.
(f) (1) Any claim for benefits under this section shall be filed within
three years of the discovery of total disability due to pneumocornosis
or, in the case of death due to pneumoconiosis, the date of such death.
PAGENO="0236"
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11
(2) Any claim for benefits under this section in the case of a living
miner filed on the basis of eligibility under section 411(c) (4) of this title,
shall be filed within three years from the date of last exposed employment
in a coal mine or, in the case of death from a respiratory or pulmonary
impairment for which benefits would be payable under section 411(c) (4~,)
of this title, incurred as the result of employment in a coal mine, shall be
filed within fifteen years from the date of last exposed employment in a
coal mine.
(g) The amount of benefits payable under this section shall be
reduced, on a monthly or other appropriate basis, by the amount of
any compensation received under or pursuant to any Federal or State
workmen's compensation law because of death or disability due to
pneumoconiosis.
(h) The regulations of the Secretary of Health, Education, and
Welfare promulgated under section 411 of this title shall also be
applicable to claims under this section. The Secretary of Labor shall
by regulation establish standards, which may include appropriate
presumptions, for determining whether pneumoconiosis arose out of
employment in a particular coal mine or mines. The Secretary may
also, by regulation, establish standards for apportioning liability for
benefits under this subsection among more than one operator, where
such apportionment is appropriate.
(i) (1) IDuring any period in which this section is applicable with
respect to a coal mine an operator of such mine who, after the date
of enactment of this title, acquired such mine or substantially all the
assets thereof from a person (hereinafter referred to in this para-
graph as a "prior operator") who was an operator of such mine
on or after the operative date of this title shall be liable for and shall,
in accordance with section 423 of this part, secure the payment of
all benefits which would have been payable by the prior operator
under this section with respect to miners previously employed in
such mine~ if the acquisition had not occurred and the prior operator
had continued to operate such mine.
(2) Nothing in this subsection shall relieve any prior operator of
any liability under this section.
SEC. 423. (a) During any period in which a State workmen's com-
pensation law is not included on the list published by the Secretary
under section 421 (b) each operator of a coal mine in such State shall
secure the payment of benefits for which he is liable under section 422
by (1) qualifying as a self-insurer in accordance with regulations
prescribed by the Secretary, or (2) insuring and keeping insured the
payment of such benefits with any stock company or mutual com-
pany or association, or with any other person or fund, including any
State fund, while such company, association, person or fund is au-
thorized under the laws of any State to insure workmen's com-
pensation.
(b) In order to meet the requirements of clause (2) of subsection
(a) of this section, every policy or contract of insurance must contain-
(1) a provision to pay benefits required under section 422, not-
withstanding the provisions of the State workmen's compensation.
law which may provide for lesser payments; .
PAGENO="0237"
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12
(2) a provision that insolvency or bankruptcy of the operator
or discharge therein (or both) shall not relieve the carrier from
liability for such payments; and
(3) such other provisions as the Secretary, by regulation, may
require.
(c) No policy or contract of insurance issued by a carrier to comply
with the requirements of clause (2) of subsection (a) of this subsec-
tion shall be canceled prior to the date specified in such policy or con-
tract for its expiration until at least thirty days have elapsed after
notice of cancellation has been sent by registered or certified mail to
the Secretary and to the operator at his last known place of business.
SEC. 424. If a totally disabled miner or a widow, child, parent,
brother, or sister is entitled to benefits under section 422 and (1) an
operator liable for such benefits has not obtained a policy or contract
of insurance, or qualified as a self-insurer, as required by section 423,
or such operator has not paid such benefits within a reasonable time,
or (2) there is no operator who was required to secure the payment
of such benefits, the Secretary shall pay such miner or such widow,
child, parent, brother, or sister the benefits to which he or she is so
entitled. In a case referred to in clause (1), the operator shall be liable
to the United States in a civil action in an amount equal to the
amount paid to such miner or his widow, child, parent, brother, or
sister under this title.
SEC. 425. With the consent and cooperation of State agencies
charged with administration of State workmen's compensation laws,
the Secretary may, for the purpose of carrying out his functions and
duties under section 422, utilize the services of State and local agen-
cies and their employees and, notwithstanding any other provision of
law, may advance funds to or reimburse such State and local agencies
and their employees for services rendered for such purposes.
SEC. 426. (a) The Secretary of Labor and the Secretary of Health,
Education, and Welfare are authorized to issue such regulations as
each deems appropriate to carry out the provisions of this title. Such
regulations shall be issued in conformity with section 553 of title 5 of
the United States Code, notwithstanding subsection (a) thereof.
(b) Within 120 days following the convening of each session of
Congress the Secretary of Health, Education, and Welfare shall sub-
mit to the Congress an annual report upon the subject matter of part
B of this title, and, after January 1, 1974, the Secretary of Labor
shall also submit such a report upon the subject matter of part C of
this title.
(c) Nothing in this title shall relieve any operator of the duty to
comply with any State workmen's compensation law, except insofar
as such State law is in conflict with the provisions of this title and
the Secretary by regulation, so prescribes. The provisions of any State
workmen's compensation law which provide greater benefits than the
benefits payable under this title shall not thereby be construed or
held to be in conflict with the provisions of this title.
SEC. 427. (a) The Secretary of Health, Education, and Welfare is
authorized to enter into contracts with, and ma/ce grants to, public and
private agencies and organizations and individuals for the construction,
purchase, and operation of fixed-site and mobile clinical facilities for the
PAGENO="0238"
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13
analysis, exam~nation, and treatment of respiratory and pulmonary im-
pairments in active and inactive coal miners. The Secretary shall coordi-
nate the making of such contracts and grants with the Appalachian
Regional Commission.
(b) The Secretary of Health, Education, and Welfare shall initiate
research within the National Institute for Occupational Safety and Health,
and is authorized to make research grants to public and private agencies
and organizations and individuals for the purpose of devising simple and
effective tests to measure, detect, and treat respiratory and pulmonary
impairments in active and inactive coal miners. Any grant made pursuant
to this subsection shall be conditioned upon all information, uses, products,
processes, patents, and other developments resulting from such research
being available to the general public, except to the extent of such exceptions
and limitations as the Secretary of Health, Education, and Welfare may
deem necessary in the public interest.
(c) There is hereby authorized to be appropriated for the purpose of
subsection (a) of this section $10,000,000 for each of the fiscal years
ending June 30, 1973, June 30, 1974, and June 30, 1975. There are
hereby authorized to be appropriated for the purposes of subsection (b) of
this section such sums as are necessary.
SEC. 428. (a) No operator shall discharge or in any other way dis-
criminate against any miner employed by him by reason of the fact that
such miner is suffering from pneumoconiosis. No person shall cause or
attempt to cause an operator to violate this section. For the purposes of
this subsection the term "miner" shall not include any person who has
been found to be totally disabled.
(b) Any miner who believes that he has been discharged or otherwise
discriminated against by any person in violation of subsection (a) of
this section, or any representative of such miner may, within ninety days
after such violation occurs, apply to the Secretary for a review of such
alleged discharge or discrimination. A copy of the application shall be
sent to such person who shall be the respondent. Upon receipt of such
application, the Secretary 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 any party to enable the parties to
present information relating to such violation. The parties shall be given
written notice of the time and place of the hearing at least five days prior
to the hearing. Any such hearing shall be of record and shall be subject
to section 554 of title 5 of the United States Code. Each hearing examiner
presiding under this section and under the provisions of titles I, II, and
III of this Act shall receive compensation at a rate not less than that
prescribed for GS~'16 under section 5332 of title 5, United States Code.
Upon recei~jng-1he report ~of such investigation, the Secretary shall ma/ce
findings offact. If he finds that such violation did occur, he shall issue a
decision, incorporating an order therein, requiring the person committing
such violation to take such affirmative action as the Secretary deems
appropriate, including, but not limited to, the rehiring or reinstatement of
the miner to his former position with back pay. If he finds that there was
no such violation, he shall issue an order denying the application. Such
order shall incorporate the Secretary's findings therein.
(c) Whenever an order is issued under this subsection granting relief
to a miner, at the request of such miner a sum equal to the aggregate amount
PAGENO="0239"
921
14
of all costs and expenses (including the attorney's fees) as determined by
the Secretary to have been reasonably incurred by such miner for, or in
connection with, the institution and prosecution of such proceedings, shall
be assessed against the person committing the violation.
SEC. 429. There is authorized to be appropriated to the Secretary of
Labor such sums as may be necessary to carry out his responsibilities
under this title. Such sums shall remain available until expended.
SEC. 430. The amendments made by the Black Lung Benefits Act of
1972 to part B of this title shall, to the extent appropriate, also apply to
part C of this title: Provided, That for the purpose of determining the
applicability of the presumption established by section 411(c) (4) to claims
filed under Part C of this title, no period of employment after June 30,
1971, shall be considered in determining whether a miner was employed
at least fifteen years in one or more underground mines.
SEC. 431. The Secretary of Health, Education, and Welfare shall, upon
enactment of the Black Lung Benefits Act of 1972, generally disseminate
to all persons who filed claims under this title prior to the date of enactment
of such Act, the changes in the law created by such Act, and forthwith
advise all persons whose claims have been denied for any reason or whose
claims are pending, that their claims will be reviewed with respect to the
provisions of the Black Lung Benefits Act of 172.
PAGENO="0240"
922
TITLE V-ADMINISTRATION
RESEARCH
SEc. 501. (a) The Secretary and the Secretary of Health, Educa-
tion, and Welfare, as appropriate, shall conduct such studies, research,
experiments, and demonstrations as may be appropriate-
(1) to improve working conditions and practices in coal mines
and to prevent accidents and occupational diseases originating
in the coal-mining industry;
(2) to develop new or improved methods of recovering persons
in coal mines after an accident;
(3) to develop new or improved means and methods of com-
munication from the surface to the underground area of a coal
mine;
(4) to develop new or improved means and methods of reduc-
ing concentrations of respirable dust in the mine atmosphere of
active workings of. the coal mine;
(5) to develop epidemiological information to (A) identify
and define positive factors involved in occupational diseases of
miners, (B) provide information on the incidence and prevalence
of pneumoconiosis and other respiratory ailments of miners, and
(C) improve mandatory health standards;
(6) to develop techniques for the prevention and control of
occupational diseases of miners, including tests for hypersuscep-
tibility and early detection;
(7) to evaluate the effect on bodily impairment and occupa-
tional disability of miners afflicted with an occupational disease;
(8) to prepare and publish from time to time, reports on all
significant aspects of occupational diseases of miners as well as
on the medical aspects of injuries, other than diseases, which are
revealed by the research carried on pursuant to this subsection;
(9) to study the relationship between coal mine environments
and occupational diseases of miners;
(10) to develop new and improved underground equipment and
other sources of power for such equipment which will provide
greater safety; and
(11) for such other purposes as they deem necessary to carry
out the purposes of this Act.
(b) Activities under this section in the field of coal mine health
shall be carried out by the Secretary of Health, Education, and Wel-
fare, and activities under this section in the field of coal mine safety
shall be carried out by the Secretary.
(c) In carrying out the provisions for research, demonstrations,
experiments, studies, training, and education under this section and
sections 301 (b) and 502 (a) of this Act, the Secretary and the Secre-
tary of Health, Education, and Welfare may enter into contracts with,
and make grants to, public and private agencies and organizations
and individuals. No research, demonstrations, or experiments shall be
carried out, contracted for, sponsored, cosponsored, or authorized
under authority of this Act, unless all information, uses, products,
processes, patents, and other developments resulting from such re-
PAGENO="0241"
923
search, demonstrations, or experiments will (with such exception and
limitation, if any, as the Secretary or the Secretary of Health, Edu-
cation, and Welfare may find to be necessary in the public interest)
be available to the general public.
(d) The Secretary of Health, Education, and Welfare shall also
conduct studies and research into matters involving the protection of
life and the prevention of. diseases in connection with persons, who
although not miners, work with, or around the products of, coal mines
in areas outside of such mines and under conditions which may ad-
versely affect the health and well-being~ of such persons.
(e) There is authorized to be appropriated to the Secretary such
sums as may be necessary to carry out his responsibilities under this
section and section 301 (b) of this Act at an annual rate of not to
exceed $20,000,000 for the fiscal year ending June 30, 1970, $25,000,000
for the fiscal year ending June 3, 1971, and $30,000,000 for the fiscal
year ending June 30, 1972, and for each succeeding fiscal year there-
after. There is authorized to be appropriated annually to the Secre-
tary of Health, Education, and Welfare such sums as may be neces-
sary to carry out his responsibilities under this Act. Such sums shall
remain available until expended.
(f) The Secretary is authorized to grant on a mine-by-mine basis
an exception to any mandatory health or safety standard under this
Act for the purpose of permitting, under such terms and conditions as
he may prescribe, accredited educational institutions the opportunity
for experimenting with new and improved techniques and equipment
to improve the health and safety of miners. No such exception shall be
granted unless the Secretary finds that the granting. of the exception
will not adversely affect the health and safety of miners and publishes
his findings.
(g) The Secretary of Health, Education, and Welfare is authorized
to make grants to any public or private agency, institution, or organi-
zation, and operators or individuals for research and experiments to
develop effective respiratory equipment.
TRAINING AND EDUCATION
SEc. 502. (a) The Secretary shall expand programs for the educa-
tion and training of operators and agents thereof, and miners in-
(1) the recognition, avoidance: and prevention of accidents or
unsafe or unhealthful working conditions in coal mines; and
(2) in the use of flame safety lamps, permissible methane detec-
tors, and other means approved by the Secretary for detecting
methane and other explosive gases accurately.
(b) The Secretary shall, to the greatest extent possible~ provide
technical assistance to operators in meeting the requirements of this
Act and in further improving the health and safety conditions and
practices in coal mines.
ASSISTANCE TO STATES
SEC. 503. (a) The Secretary, in coordination with the Secretary of
Health, Education, and Welfare and the Secretary of Labor, is
75-623 0 - 74 - pt. 3 - 16
PAGENO="0242"
~24
authorized to make grants in accordancewith an application approved
under this section to any State in which coal mining takes place-
(1) to assist such State in developing and enforcing effective
coal mine health and safety laws and regulations consistent with
the provisions of section 506 of this Act;
(2) to improve State workmen's compensation and occupa-
tional disease laws and programs related to coal mine employ-
ment; and
(3) to~ promote Federal-State coordination and cooperation
in improving the health and safety conditions in the coal mines.
(b) The Secretary shall approve any application or any modification
thereof, submitted under this section by a State, through its official
coal mine inspection or safety agency, which-
(1) sets forth the programs, policies, and methods to be fol-
lowed in carrying out the application in accordance with the pur-
poses of subsection (a) of this section;
(2) provides research and planning studies to carry out plans
* designed to improve State workmen's compensation and occupa-
tional disease laws and programs, as they relate to compensation
to miners for occupationally caused diseases and injuries arising
out of employment in any coal mine;
(3) designates such State cQal mine inspection or safety agency
as the sole agency responsible for administering grants under
this section throughout the State, and contains satisfactory evi-
dence that such agency will have the authority to carry out the
purposes of this section;
(4) gives assurances that such agency has or will employ an
adequate and competent staff of trained inspectors qualified under
the laws of such State to make coal mine inspections within such
State;
(5) provides for the extension and improvement of the State
program for the improvement of coal mine health and safety in
the State, and provides that no advance notice of an inspection
will be provided anyone;
(6) provides such fiscal control and fund accounting procedures
as may be appropriate to assure proper disbursement and account-
ing of grants made to the States under this section;
(7) provides that the designated agency will make such Teports
to the Secretary in such form and containing such information as
the Secretary may from time to time require;
(8) contains assurances that grants provided under this section
- will supplement, not supplant, existing State coal mine health and
safety programs; and
(9) meets additional conditions which the Secretary may pre-
scribe in furtherance of, and consistent with, the purposes of this
section.
(c) The Secretary shall not finally disapprove any State applica-
tion or modification thereof without first affording the State agency
reasonable notice and opportunity for a public hearing.
(d) Any State aggrieved by a decision of the Secretary under sub-
section (b) or (c) of this section may file within thirty days from the
date of such decision with the United States Court of Appeals for the
District of Columbia a petition praying that such action be modified
or set aside in whole or in part. The court shall hear such appeal on
PAGENO="0243"
925
the record made before the Secretary. The decision of the Secretary
incorporating his findings of fact therein, if supported by substantial
evidence on the record considered as a whole, shall be conclusive. The
court may affirm, vacate, or remand the proceedings to the Secretary
for such further action as it directs. The filing of a petition under this
subsection shall not stay the application of the decision of the Secre-
tary, unless the court so orders. The provisions of section 106 (a), (b),
and (c) of this Act shall not be applicable to this section.
(e) Any State application or modification thereof submitted to the
Secretary under this section may include a program to train State
inspectors.
(f) The Secretary shall cooperate with such State in carrying out
the application or modification thereof and shall, as appropriate,
develop and, where appropriate, construct facilities for, and finance a
program of, training of Federal and State inspectors jointly. The
Secretary shall also cooperate with such State in establishing a system
by which State and Federal inspection reports of coal mines located
in the State are exchanged for the purpose of improving health and
safety conditions in such mines.
(g) The amount granted to any coal mining State for a fiscal year.
under this section shall not exceed 80 per centum of the amount ex-
pended by such State in such year for carrying out such application.
(h) There is authorized to be appropriated $3,000,000 for fiscal
year 1970, and $5,000,000 annually in each succeeding fiscal year to
carry out the provisions of this section, which shall remain available
until expended. The Secretary shall provide for an equitable distribu-
tion of sums appropriated for grants under this section to the States
where there is an approved application.
ECONOMIC ASSISTANCE
SEC. 504. (a) Section 7(b) of the Small Business Act, as amended,
is amended-
(1) by striking out the period at the end of paragraph (4)
and inserting in lieu thereof f'.; and" and
(2) by adding after paragraph (4) a new paragraph as follows:
"(5) to make such loans (either directly or in cooperation with
banks or other lending institutions through agreements to par-
ticipate on an immediate or deferred basis) as the Administration
may determine to be necessary or appropriate to assist any small
business concerns operating a coal mine in affecting additions to
or alterations in the equipment, facilities, or methods of opera-
tion of such mine requirements imposed by the Federal Coal
Mine Health and Safety Act of 1969, if the Administration deter-
mines that such concern is likely to suffer substantial economic
injury without assistance under this paragraph."
(b) The third sentence of section 7(b) of such Act is amended by
inserting "or (5)" after "paragraph (3)".
(c) Section 4(c) (1) of the Small Business Act, as amended, is
amended by inserting "7(b) (5) ," after "7(b) (4),".
(d) Loans may also be made or guaranteed for the purposes set
forth in section 7(b) (5) of the Small Business Act, as amended pur-
suant to the provisions of section 202 of the Public Works and Eco-
nomic, Development Act of 1965, as amended.
PAGENO="0244"
26
INSPECTORS; QUALIFICATIONS: TRAINING
SEC. 505. The Secretary may, subject to the civil service laws, ap-
point such employees as he deems requisite for the administration of
this Act and prescribe their duties. Persons appointed as authorized
representatives of the Secretary shall be qualified by practical experi-
ence in the mining of coal or by experience as a practical mining
engineer or by education. Persons appointed to assist such represent-
atives in the taking of samples of respirable dust for the purpose of
enforcing title II of this Act shall be qualified by training, experi-
ence, or education. The provisions of section 201 of the Revenue and
Expenditure Control Act of 1968 (82 Stat. 251, 270) shall not apply
with respect to the appointment of such authorized representatives of
the Secretary or to persons appointed to assist such representatives
and to carry out the provisions of this Act, and, in applying the pro-
visions of such section to other agencies under the Secretary and to
other agencies of the Government, such appointed persons shall not be
taken into account. Such persons shall be adequately trained by the
Secretary. The Secretary shall develop programs with educational
institutions and operators designed to enable persons to qualify for
positions in the administration of this Act. In selecting persons and
training and retraining persons to carry out the provisions of this Act,
the Secretary shall work with appropriate educational institutions,
operators, and representatives of miners in developing and maintain-
ing adequate programs for the training and continuing education of
persons, particularly inspectors, and where appropriate, the Secre-
tary shall cooperate with such institutions in carrying out the provi-
sions of this section by providing financial and technical assistance
to such institutions.
EFFECT ON STATE LAWS
SEC. 506. (a) No State law in effect on the date of enactment of this
Act or which may become effective thereafter shall be superseded by
any provision of this Act or order issued or any mandatory health or
safety standard, except insofar as such State law is in conflict with
this Act or with any order issued or any mandatory health or safety
standard.
(b) The provisions of any State law or regulation in effect upon the
operative date of this Act, or which may become effective thereafter,
which provide for more stringent health and safety standards applica-
ble to coal mines than do the provisions of this Act or any order issued
or any mandatory health or safety standard shall not thereby be con-
strued or held to be in conflict with this Act. The provisions of any
State law or regulation in effect on the date of enactment of this Act,
or which may become effective thereafter, which provide for health
and safety standards applicable to coal mines for which no provision
is contained in this Act or in any order issued or any mandatory
health or safety standard, shall not be held to be in conflict with this
Act.
PAGENO="0245"
927
ADMINISTRATIVE PROCEDURES
SEC. 507. Except as otherwise provided in this Act, the provisions
of sections 551-559 and sections 701-706 of title 5 of the United States
Code shall not apply to the making of any order, notice, or decision
made pursuant to this Act, or to any proceeding for the review thereof.
REGULATIONS
SEC. 508. The Secretary, the Secretary of Health, Education, and
Welfare, and the Panel are authorized to issue such regulations as
each deems appropriate to carry out any provision of this Act.
OPERATIVE DATE AND REPEAL
SEC. 509. Except to the extent an earlier date is specifically pro-
vided in this Act, the provisions of titles I and III of this Act shall
become operative ninety days after the date of enactment of this Act,
and the provisions of title II of this Act shall become operative six
months after the date of enactment of this Act. The provisions of the
Federal Coal Mine Safety Act, as amended, are repealed on the opera-
tive date of titles I and III of this Act, except that such provisions
shall continue to apply to any order, notice, decision, or finding issued
under that Act prior to such operative date and to any proceedings
related to such order, notice, decision or findings. All other provisions
of this Act shall be effective on the date of enactment of this Act.
SEPARABILITY
SEC. 510. If any provision of this Act, or the application of such
provision to any person or circumstance shall be held invalid, the
remainder of this Act, or the application of such provision to persons
or circumstances other than those as to which it is held invalid, shall
not be affected thereby.
REPORTS
SEC. 511. (a) Within one hundred and twenty days following the
convening of each session of Congress the Secretary shall submit
through the President to the Congress and to the Office of Science and
Technology an annual report upon the subject matter of this Act, the
progress concerning the achievement of its purposes, the needs and
requirements in the field of coal mine health and safety, the amount
and status of each loan made pursuant to this Act, a description and
the anticipated cost of each project and program he has undertaken
under sections 301 (b) and 501, and any other relevant information,
including any recommendations he deems appropriate.
(b) Within one hundred and twenty days following the convening
of each session of Congress, the Secretary of Health, Education, and
Welfare shall submit through the President to the Congress and to the
Office of Science and Technology an annual report upon the health
matters covered by this Act, including the progress toward the achieve-
PAGENO="0246"
928
ment of the health purposes of this Act, the needs and requirements in
the field of coal mine health, a description and the anticipated cost of
each project and program he has undertaken under sections 301 (b)
and 501, and any other relevant information, including any recom-
mendations he deems appropriate. The first such report shall include
the recommendations of the Secretary of Health, Education, and Wel-
fare as to necessary mandatory health standards, including his recom-
mendations as to the maximum permissible individual exposure to
miners from respirable dust during a shift.
SPECIAL REPORT
SEC. 512. (a) The Secretary shall make a study to determine the best
manner to coordinate Federal and State activities in the field of coal
mine health and safety so as to achieve (1) maximum health and safety
protection for miners, (2) an avoidance of duplication of effort, (3)
maximum effectiveness, (4) a reduction of delay to a minimum, and
(5) most effective use of Federal inspectors.
(b) The Secretary shall make a report of the results of his study
to the Congress as soon as practicable after the date of enactment of
this Act.
JURISDICTION; LIMITATION
SEC. 513. In any proceeding. in which the validity of any interim
mandatory health or safety standard set forth in titles II and III of
this Act is in issue, no justice, judge, or court of the United States shall
issue any temporary restraining order or preliminary injunction re-
straining the enforcement of such standard pending a determination
of such issue on its merits. .
Approved December 30, 1969.
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BLACK LUNG BENEFITS ACT OF 1972
Public Law 92-303
92nd Congress, H. R. 9212
May 19, 1972
~n ~it
86 STAT. 150
To iiiiend the provisions of the Federal (`oal Mine Health and Safety Act
of lOOt) to extend black lung benefits to orphans whose fathers (lie of l~nen-
moconiosis, and for other purposes.
Be it enacted by the Semite and house of Repiesentatues of the
United States of America in Can gress assemb7ed, That (a) this Act Black Long
may be cited as the "Black Lung Benefits Act of 1972". Benefits Act
(b) (1) Section 412(a) of the Federal Coal Mine Health and Safety of 1972.
Act of 1969 is amended by redesignating paragraph (3) as paragraph 83 Stat. 794.
(4), and by inserting after paragraph (2) the following new pam- 30 USC 922.
graph:
"(3) In the case of the child or children of a miner whose death Orphans,
is due to pneumoconiosis or of a miner who is receiving benefits under benefits.
this part at the time of his death, or who was totally disabled by
pleumocoiuosis at the time of his death, and in the case of the child
or. children of a widow who is receiving benefits under this part at
the time of her death, benefits shall be paid to such child or children
as follows: If there is one such child, he shall be paid benefits at the
rate specified in paragraph (1). If there is more than one such child,
the benefits paid shall be divided equally among them and shall be
paid at a rate equal to the rate specified in paragraph (1) increased
by 50 per centum of such rate if there are two such children, by 75
per centum of such rate if there are three such children, and by 100
per centui~ of such rate if there are more than three such children:
Provided, That benefits shall only be paid to a child for so long as
lie meets the criteria for the term `child' contained in section 402(g) : Post, p. 152.
And provided further, That no entitlefi-ient to benefits as a child
shall be established irnder this paragraph (3) for any month for
which entitlement to benefits as a widow is established under para-
graph (2)."
(2) Section 412(a) of such Act is further amended by adding at
the end thereof the following new paragraphs:
"(5) In the case of the dependent parent or parents of a miner Dependent
whose det~th is due to pneumoconiosis. or of a miner who is receiving parents,
benefits under this part at the time of his death, or of a miner who was brothers or
totally disabled by pneumoconiosis at the time of death, and who is sisters.
not survived at the time of his death by a widow or a child, or in the
case of the dependent surviving brother(s) or sister(s) of such a miner
who is not survived at the time of his death by a widow, child, or par-
ent, benefits shall be paid under this part to such parent(s), or to
such brother(s), or sister(s), at the. rate specified in paragraph (3) (as
if such parent(s) or such brother(s) or sister(s), were the children of
such miner). In determining for purposes of this paragraph whether
a claimant bears the relationship as the miner's parent, brother, or
sister, the Secretary shall apply legal standards consistent with those
applicable to relationship determination under title II of the Social
Security Act. No benefits to a sister or brother shall be payable under 42 USC 401.
this paragraph for any month beginning with the month in which he
or she receives support from his or her spouse, or marries. Benefits
shall be payable under this paragraph to a brother only if he is-
"(1) (A) under eighteen years of age, or
"(B) und~r a disability as defined in section 223(d) of the
Social Security Act which began before the age specified in section 81 Stat. 868.
202(d) (1) (B) (ii) of such A~t, or in the case of a student, before 42 USC 423.
he ceased to be a student, or 79 Stat. 370.
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"(C) a student as defined in section 402(g) ; or
"(2) who is, at the time of the miner's death, disabled as deter-
mined in accordance with sectioii 223(d) of the Social Securite
Act; during such disability. Any benefit under this paragraph
for a month prior to the month in which a claim for such bene-
fit is filed shall be reduced to any extent that may be necessary,
so that it~ will not render erroneous any benefit which, before
the filing of such claim, the Secretary has certified for payment
for such prior months. As used in this paragraph, `dependent'
means that during the one year period prior to and ending with
such miner's death, such parent, brother, or sister was living in
the miner's household, and was, during such period, totally
dependent on the miner for support. Proof of such support shall
be filed by such claimant within two years after the month in
which this amendment is enacted, or within two years after the
miner's death, whichever is the later. Any such proof which is
filed after the expiration of such period shall be deemed to have
been filed within such period if it is shown to the satisfaction of
the Secretary that there was good cause for failure to file such
proof within such period. The determination of what constitutes
`living in the miner's household', `totally dependent upon tile
miner for support,' and `good cause,' shall for purposes of this
paragraph be made in accordance with regulations of the Secre-
t.ary. Benefit payments under this paragra~)i1 to a parent, brother,
or sister, shall be reduced by the amount by which such pay-
inents would be reduced ~n account of excess earnings, of such
parent, brother, or sister, respectively, under section 203 (b)-(l)
of the Social Security Act, as if the benefit under this paragraph
were a benefit under section 202 of such Act.
"(6) If an individual's benefits would be increased under para-
graph (4) of this subsection because he or she has one or more depend-
ents, and it appears to the Secretary that it would be in the interest
of any such dependent to have the amount of such increase in bene-
fits (to the extent attributable to such dependent) certified to a
Ilerson other than such individual, then the Secretary may, under regu-
lations prescribed by him, certify the amount of such increase in bene-
fits (to the extent so attributable) not to such individual but directly
to such dependent or to another person for the use and benefit of such
dependent; and any l)aYment made under this clause, if otherwise
valid under this title, shall be a complete settlement and satisfaction
of all claims, rights, and interests in and to such payment."
(c) (1) Sections 412(b), 414(e), and 424 of such Act are amended
by inserting after "widow" each time it appears the following: ", child,
parent, brother, or sister", and section 421 (a) is amended by insert-
ing after "widows" the following: ", children, parents, brothers, or
sisters, as the case may i)e,".
(2) Section 402(a) of such Act is amended to read:
"(a) The term `dependent' means-
"(1) a child as defined in subsection (g) without regard to
subparagraph (2) (B) (ii) thereof; or
"(2) a wife who is a member of the same household as the
miner, or is receiving regular contributions from the miner for
her support, or whose husband is a miner who has been ordered
by a court to contribut~u to her support, or who meets the require-
ments of section 216(b) (1) or (2) of the Social Security Act.
The determination of an individual's status as the `wife' of a
miner shall be made in accordance with section 216(h) (1) of the
Social Security Act as if suth miner were the `insured individual'
930
86 STAT. 151
Pub. Law 92.303
May 19, 1972
Post, p.. 152.
81 Stat. 868.
42 Usc 423.
"Dependent."
Proof of
support,
filing date.
42 USC 403.
42 USC 402.
Aunoented
benefits,
o ert ificat ion.
Ante, p. 150.
83 Stat. 794,
795, 798.
30 USC 922,
924, 934.
30 USC 931.
30 USC 902.
"Dependent."
~ p. 152.
64 Stat. 510;
74 Stat. 950.
42 USC 416.
71 Stat. 519.
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May 19, 1972 - 3 - Pub. Law 92-303
86 STAT. 152
referred* to therein. The term `wife' also includes a `divorced
wife' as defined in section 216(d) (1) of the Social Security Act 79 Stat. 377.
who is receiving at least one-half of her support, as determined 42 USC 416.
in accordance with regulations prescribed by the Secretary, from
the miner, or is receiving substantial contributions from the miner
(pursuant to a written agreement), or there is in effect a court
order for substantial contributions to her support from such
miner.".
(3) Section 402(e) of such Act is amended to read: "Widow."
"(e) The term `widow' includes the wife living with or dependent 83 Stat. 792.
for support on the miner at the time of his death, or living apart for 30 USC 902.
reasonable cause or because of his desertion, or who meets the require-
ments of section 216(c) (1), (2), (3), (4), or (5), and section 216(k)
of the Social Security Act, who is not married. The determination of 72 Stat. 1027.
an individual's status as the `widow' of a miner shall be made in accord- 81 Stat. 866.
once with section 216(h) (1) of the Social Security Act as if such 71 Stat. 519;
miner were the `insured individual' referred to therein. Such term also 74 Stat. 951.
includes a `surviving divorced wife' as defined in section 216(d) (2) of
the Social Security Act who for the month preceding the month in
which the miner died, was receiving at least one-half of her support,
as determined in accordance with regulations prescribed by the Secre-
tary, from the miner, or was receiving substantial contributions from
the miner (pursuant to a written agreement) or there was in effect a
court order for substantial contributions to her support from the miner
at the time of his death."
(4) Section 402 of such Act is amended by adding at the end thereof
the following new subsection:
"(g) The term `child' means a child or a step-child who is- "Child."
"(1) unmarried; and
`~(2) (A) under eighteen years of age, or
"(B) (i) under a disability as defined in section 223(d) of the
Social Security Act, 42 USC 423.
"(ii) which began before the age specified in section 202(d) (1)
(B) (ii) of the Social Security Act, or, in the case of a student, 42 USC 402.
before he ceased to be a student; or
"(C) a student.
The term `student' means a `full-time student' as defined in section "Student."
202(d) (7) of the Social Security Act, or a `student' as defined in see- 79 Stat. 371;
tion 8101(17) of title 5, United States Code. The determination of an 81 Stat * 860.
individual's status as the `child' of the miner or widow, as the case may 81 Stat * 209.
be, shall be made in accordance with section 216(h) (2) or (3) of the
Social Security Act as if such miner or widow were the `insured mdi- 79 Stat. 409.
vidual' referred to therein."
(5) (A) Section 413(b) of such Act is amended by adding at the ~ p. 154.
end thei~eof the following new sentence: "The provisions of sections
204,205 (a), (b), (d), (e), (f), (g), (h), (j), (k),and (1), 206, 207,
and 208 of the Social Security Act shall be applicable under this part 42 USC 404-
with respect to a miner, widow, child, parent, brother, sister, or de- 408.
pendent, as if benefits under this part were benefits under title II of
such Act." 42 USC 401.
(B) Only section 205, (b), (g), and (h) of those sections of the Effective date.
Social Security Act recited in subparagraph (A) of this paragraph
shall be effective as of the date provided in subsection (d) of this
section.
(6) Section 414(a) of such Act is amended by inserting "(1)" after Claims,
"(a)" and by adding the following new paragraphs at the end thereof: filing.
"(2) In the case of a claim by a child this paragraph shall apply, 83 Stat. 795.
notwithstanding any other provision of this part. 30 USC 924.
"(A) If such claim is filed within six monfhs following the month Retroactive
in which this paragraph is enacted, and if entitlement to benefits is entitlement.
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Pub. Law 92-303 - 4 - May 19, 1972.
86 STAT. 153
established pursuant to such claim, such entitlement shall be effective
retroactively from December 30, 1969, or from the date such child
would have been first; eligible for such benefit payment~ had section
Ante, p. 150. 412(a) (3) been applicable since December 30, 1969, whichever is the
lesser period. If on the date such claim is filed the claimant is not
eligible for benefit payments, but was eligible at any period of time
during the period from December 30, 1969, to the date such claim
is filed, entitlement shall be effective for the duration of eligil)ility
during such period.
"(B) If such claim is filed after six months following the month
in which t.his paragraph is enacted, and if entitlement to benefits is
established pursuant to such claim, such entitlement shall be effective
retroactively from a date twelve months preceding the date such claim
is filed, or from the date such child would have been first eligible for
such benefit payments had section 412(a) (3) been applicable since
1)ecember 30, 1969, whichever is the lesser period. If on the date such
claim is filed the claimant is not eligible for benefit payments, but was
eligible at any period, of time during the period from a date twelve
months preceding the date such claim is filed, to t.he date such claim
is filed, entitlement shall be effective for the duration of eligibility
during such period.
"(C) No claim for benefits under this part, in the case of a claimant
who is a child, shall be considered unless it is filed within six months
after the death of his father or mother (whichever last occurred) or
by December 31, 1973, whichever is t.he later.
"(D) Any benefit under subparagraph (A) or (B) for a month
prior to the month in which a claim is filed shall be reduced, to any
extent. that may be necessary, so that it will not render erroneous any
benefit which, before the filing of such claim, the Secretary has certified
for payment for such prior month.
"(3) No claim for benefits mander this part, in the case of a claimant
who is a parent, brother, or sister shall be considered unless it is filed
within six months after the death of the miner or by Deceniber 31,
1973, whichever is the later."
Benefit pay- SEC. 2. (a) Section 412(b) of the Federal Coal Mine Health and
ment offset, Safety Act of 1969 is amended by adding at the end thereof the fol-
limitat ion. lowing: "This part shall not be considered a workmen's compensation
83 Stat. 794* law or plan for purposes of section 224 of such Act."
30 USC 922. (b) The amendment made by this section shall be effective as of
Eff tve ~ December 30, 1969.
ec 1 SEC. 3. (a) Sections 401, 411(c) (1), 411(c) (2), and 422(h) of the
30 USC 901, Federal Coal Mine Health and Safety Act of 1969 are each amended
921, 932. by striking out "underground".
30 USC 902, (b) Sections 402(b), 402(d), 422(a), and 423(a) of such Act are
933. each amended by striking out "an underground"~ and inserting "a"
in lieu thereof.
Effective date. (c) The amendments made by this section shall be effective as of
December 30, 1969.
SEC. 4. (a) Section 402(f) of the Federal Coal Mine Health and
30 USC 902. Safety Act of 1969 is amended to read as follows:
`Total dis- "(f) The term `total disability' has the meaning given it by regu-
ability.' lations of the Secretary of Health, Education, and Welfare, except
that such regulations shall provide that a miner shall be considered
totally disabled when pneumoconiosis prevents him from engaging
in gainful employment requiring the skills and abilities comparable
to those of any employment in a mine or mines in which he previousi-~
engaged with some regularity and over a substantial period of tim~.
Such regulations shall not provide more restrictive criteria than those
81 Stat * 368. applicable under section 223(d) of the Social Security Act."
42 USC 423.
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May 19, 1972 - 5 - Pub. Law 92-303 86 STAT. 154
(b) (1) Section 411 (a) of such Act is further amended by adding 83 Stat. 793.
at the end thereof the following: "or who at the time of his death was 30 USC 921.
totally disabled by pneumoconiosis."
(2) Section 401 is amended by inserting after the word "disease" 30 USC 901.
each place it appears the following: "or who were totally disabled by
this disease at the time of their deaths".
(3) Section 411(c) (3) is amended by inserting after "pneumo-
coniosis," the following: "or that at the time of his death he was totally
disabled b~ pneumoconiosis."
(c) Secfion 411 (c) of such Act is amended by striking the word Rebuttable
"and" at the end of paragraph (2), by striking the period at the end presi~nption.
of paragraph (3), inserting"; and", and by adding at the end thereof
the following new paragraph:
"(4) if a miner was employed for fifteen years or more in
one or more underground coal mines, and if there is a chest
roentgenogram submitted in connection with such miner's, his
widow's, his child's, his parent's, his brother's, his sister's, or his
dependent's claim under this title and it is interpreted as nega-
tive with respect to the requirements of paragraph (3) of this
subsection, and if other evidence demonstrates the existence of
a totally disabling respiratory or pulmonary impairment, then
ther~ shall be a rebuttable presumption that such miner is totally
disabled due to pneumoconiosis, that his death was due to pneumo-
coniosis, or that at the time of his death he was totally disabled
by pneumoconiosis. In the case of a living miner, a wife's affidavit
may not be used by itself to establish the presumption. The Secre-
tary shall not apply all or a portion of the requirement of this
paragraph that the miner work in an underground mine where
he determines that conditions of a miner's employment in a coal
mine other than an underground mine were substantially similar
to conditions in an underground mine. The Secretary may rebut
such presumption only by establishing that (A) such miner does
not, or did not, have pneumoconiosis, or that (B) his respiratory
or pulmonary impairment did not arise out of, or in connection
with, employment in a coal mine."
(d) Section 411(b) is amended by inserting immediately after the Publication
penultimate sentence thereof the following new- sentence: "Final regu- in Federni
lations required for implementation of any amendments to this title Register.
shall he promulgated and published in the Federal Register at the
earliest practicable date after the date of enactment of such amend-
ments, and in no event later than the end of the fourth month follow-
ing the month in which such amendments are enacted."
(e) Section 421(h) (2) (C) of such Act is amended by striking the 30 USC 931.
word "those" nnd inserting in lieu thereof "section 402(f) of this
title and to those standards", and by substituting for the words "by 30 USC 902.
section 411" the words "under part B of this title".
(f) The first sentence of section 413(b) of such Act is amended Claims,
by inserting before the period at the end thereof tlìe follow-ing: ", but validity
no claim for benefits under this part shall be denied solely on the basis detemination.
of the results of a chest roentgenogram. In determining the validity of 83 Stat * 794.
claims under this part, all relevant evidence shall be considered, includ- 30 USC 923.
ing, where relevant, medical tests such as blood gas studies, X-ray
examination, electrocardiogram, pulmonary function studies, or pliysi-
cal performance tests, and any medical history, evidence submitted by
the claimant's physician, or his wife's affidavits, and in the case of a
deceased miner, other appropriate affidavits of persons with knowledge
of the miner's physical condition, and other supportive materials."
(g) The amendments made by this section shall be effective as of Effective date.
December 30, 1969.
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Pub. Law 92-303 - 6 May 19, 1972
86 STAT. 155
Time extensions. SEC. 5. Title IV of the Federal Coal Mine Health and Safety Act
83 Stat. 792. of 1969 isamended--
30 Usc gol. (1) by striking out "December 31, 1971" where it appears in
30 USC 924. section 414(b), and inserting in lieu thereof "June 30, 1973",
(2) by striking out "1972" each place it appears and inserting
30 USC 931. in lieu thereof "1973", other than in section 421(b) (1),
(3) by striking out "1973" each time it appears and inserting in
lieu thereof "1974",
30 USC 932. (4) by striking out "seven" where it appears in section 422(e)
and inserting in lieu thereof "twelve",
(5) by adding a new subsection (c) to section 421 thereof as
follows:
Publication "(c) Final regulations required for implementation of any amend-
in Federal ments to this part shall be promulgated and published in the Federal
Register. Register at the earliest practicable date after the date of enactment
of such amendments, and in no event later than the end of the sixth
month following the month in which such amendments are enacted.",
30 USC 936. (6) by inserting immediately after section 426 thereof, the fol-
lowing new section:
Contract "SEc. 427. (a) The Secretary of Health, Education, and Welfare is
authority, authorized to enter into contracts with, and make grants to, public and
private agencies and organizations and individuals for the construc-
tion, purchase, and operation of fixed-site and mobile clinical facilities
for the analysis, examination, and treatment of respiratory and peel-
monary impairments in active and inactive coal miners. The Secretary
shall coordinate the making of such contracts and grants with the
Appalachian Regional Commission.
Reseainh "(b) The Secretary of Health, Education, and Welfare shallinitiate
grants. research within the National Institute for Occupational Safety and
Health, and is authorized to make research grants to public and pri-
vate agencies and organizations and individuals for the purpose of
devising simple and effective tests to measure, detect, and treat respira-
tory and pulmonary impairments in active and inactive coal miners.
Any grant made pursuant to this subsection shall be conditioned upon
all information, uses, products, processes, patents. and other develop-
ments resulting from such research being available to the general
public, except to the extent of such exceptions and limitations as the
Secretary of Health, Education, and `Welfare may deem necessary in
the public interest.
Appropriation. "(c) There is hereby authorized to be appropriated for the purpose
of subsection (a) of this section $10,000,000 for each of the fiscal years
ending June 30, 1973, June 30, 1974, and June 30, 1975. There are
hereby authorized to be appropriated for the purposes of subsection
(b) of this section such sums as are necessary.",
(7) by adding at the end thereof the following new section:
Discrimination "SEC. 428. (a) No operator shall discharge or in any other way
prohicit ion, discriminate against any miner employed by him by reason of the fact
that such miner is suffering from pneumoconiosis. No person shall
"Miner." cause or attempt to cause an operator to violate this section. For the
purposes of this subsection the term `miner' shall not include any
person who has been found to be totally disabled.
"(b) Any miner who believes that he has been discharged or other-
wise discriminated against by any person in violation of subsection (a)
of this section, or any representative of such miner may, within ninety
days aftfir such violation occurs, apply to the Secretary for a review
of such alleged discharge or discrimination. A copy of the application
shall be sent to such person who shall be the respondent. Upon receipt
of such application, the Secretary shall cause such investigation to be
made as he deems appropriate. Such investigation shall provide an
opportunity for a publiclearing at the request of any party to enable
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May 19, 1972 - 7 - Pub, Law 92-303
86 STAT. 156
the parties to present information relating to such violation. The
parties shall be given written notice of the time and place of the hear-
ing at least five days prior to the hearing. Any such hearing shall be
of record and shall be subject to section 554 of title 5 of the United
States Code. Each hearing examiner presiding under this section and 80 Stat. 384.
under the provisions of titles I, II and III of this Act shall receive 30 USC 811,
compensation at a rate not less than that prescribed for GS-16 under 841, 861.
section 5332 of title 5, United States Code. Upon receiving the report 5 USC 5332
of such investigation, the Secretary shall make findings of fact. If be note.
finds that such violation did occur, he shall issue a decision, incor-
porating an order therein, requiring the person committing such
violation to take such affirmative action as the Secretary deems appro-
priate, including, but not limited to, the rehiring or reinstatement of
the miner to his former position with back pay. If he finds that there
was no such violation, he shall issue an order denying the application.
Such order shall incorporate the Secretary's findings therein.
"(c) Whenever an order is issued under this subsection granting Penalty.
relief to a miner at the request of such miner, a sum equal to the
aggregate amount of all costs and expenses (including the attorney's
fees) as determined by the Secretary to have been reasonably incurred
by such miner for, or in connection with, the institution and prosecu-
tion of such proceedings, shall be assessed against the person commit-
ting the violation.",
(8) by adding at the end thereof the following new section:
"SEc. 429. There is authorized to be appropriated to the Secretary Appropriation,
of Labor such sums as may be necessary to carry out his responsibilities
under this title. Such sums shall remain available until expended.",
(9) by striking "7" in section 422(a), and 83 Stat. 796.
(10) by adding at the end thereof the following new section: 30 USC 932.
"SEC. 430. The amendments made by the Black Lung Benefits Act Applicability.
of 1972 to part B of this title shall, to the extent appropriate, also 30 USC 921.
apply to part C of this title: Prov~'ded, That for the purpose of 30 USC 931.
determining the applicability of the presumption established by sec-
tion 411(c) (4) to claims filed under part C of this title, no period of ~ p. 154.
employment after June 30, 1971, shall be considered in determining
whether a miner was employed at least fifteen years in one or more
underground mines."
SEC. 6. Title IV of the Federal Coal Mine Health and Safety Act of Claimants,
1969 is amended by adding at the end thereof the following new notification.
section: ~ P' 155.
"SEC. 431. The Secretary of Health, Education, and Welfare shall,
upon enactment of the Black Lung Benefits Act of 1972, generally
disseminate to all persons who filed claims under this title prior to
the date of enactment of such Act the changes in the law created by
such Act, and forthwith advise all persons whose claims have been
denied for any reason or whose claims are pending, that their claims
will be reviewed with respect to the provisions of the Black Lung
Benefits Act of 1972."
SEC. 7. Title IV of the Federal Coal Mine Health and Safety Act Transition
of 1969 is amended by adding at the end of part B thereof the follow- period,
ing new section: administration,
"SEC. 415. (a) Notwithstanding any other provision in this title, for
the purpose of assuring the uninterrupted receipt of benefits by claim-
ants at such time as responsibility for administration of the benefits
program is assumed by either a State workmen's compensation agency
or the Secretary of Labor, any claim for benefits under this part filed
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Pub. Law 92-303 - 8 - May 19, 1972
86 STAT, 157
during the period from .Tuly 1, 1973 to December 31, 1973, shall `be
considered and determined in accordance with the procedures of this
section. With respect to any such claim-
"(1) Such claim shall be determined and, where appropriate
83 Stat. 798. under this part or section 424 of this title, benefits shall be paid
30 Usc 934. with respect to such claim by the Secretary of Labor.
"(2) The maniier and place of filing such claim shall be in
accordance with regulations issued jointly by the Secretary of
Health, Education, and Welfare and the Secretary of Labor,
which regulations shall provide, among other things, that such
claims may be filed in district offices of the Social Security Admin-
istration and thereafter transferred to the jurisdiction of the
Department of Labor for further consideration.
"(3) The Secretary of Labor shall promptly notify any opera-
tor who he believes, on the basis of information contained in the
claim, or any other information available to him, may be liable
30 USC 931. to pa.y benefits to the claimant under part C of this title for any
month after December 31,1973.
"(4) in determining such claims, the Secretary of Labor shall,
to the extent. appropriate, follow the procedures described in sec-
tions 19 (b), (c), and (d) of Public Law 803, 69th Congress (44
33 USC 919. Stat. 1424, approved March 4, 1927),as amended.
"(5) Any operator who has been notified of the pendency of a
claim under paragraph 4 of this subsection shall be bound by the
determination of the Secretary of Labor on such claim as if the
claim had been filed pursuant to part C of this title and section
30 USC 932. 422 thereof had been applicable to such operator. Nothing in this
paragraph shall require any operator to pay any benefits for any
month prior to January 1, 1974.
Regulations. "(b) The Secretary of Labor, after consultation with the Secretary
of Health, Education, and IVelfare, may issue such regulations as are
necessary or appropriate to carry out the purpose of this section."
Claims, SEC. 8. Section 422(f) of title IV of the Federal Coal Mine Health
filing, and Safety Act of 1969 is amended by inserting "(1)" after "(f)" and
by adding a new paragraph (2) asfollows:
"(2) Any claim for benefits under this section in the case of a living
miner filed on the basis of eligibility under section 411 (c) (4) of this
~ p. 154. title, shall be filed within three years from the date of last exposed
employment in a coal mine or, in the case of death from a respiratory
or pulmonary impairment for which benefits would be payable under
section 411 (c) (4) of this title, incurred as the result of employrn'ent
in a coal mine, shall be filed within fifteen years from the date of last
exposed employment in a coal mine."
Approved May 19, 1972.
LEGISLATIVE HISTORY:
HOUSE REPORTS Nos, 92-460 and 92-460, Part II (Comm. on
Education and Labor) and No. 92-1048
(Comm. of Conference).
SENATE REPORrS: No. 92-743 (Comm. on. Labor and Publ~o Welfare)
and No, 92.-780 (Comm. of Conference).
CONGRESSIONAL RECORD:
Vol. 117 (1971): Cot. 18, Nov. 9, 10, considered and
passed House.
Vol. 118 (1972): Apr. 17, considered and passed Senate, amended.
May 4, Senate agreed to conference report.
Nay 10, House agreed to conference report.
~4EEKLY COMPILATION OF PRmIDENTIAL DOCUMEMTS, Vol. 8, No. 21:
May 20, Presidential statement,
GPO 65-139
PAGENO="0255"
FEDERAL METAL AND NON-METALLIC MINE
SAFETY ACT
30 U.S.C. 721-740, 80 Stat. 772 (1966)
Summary and Description
The main objectives of the Federal Metal and Nonmetallic Mine
Safety Act are to reduce the frequency of disabling accidents and to
prevent conditions that constitute hazards to the health of the work-
ers in metal and nonmetal mines and associated plants. Such objectives
are effected through inspections of mines and related plants; investi-
gations of accidents, disasters, and unsafe health and safety condi-
tions; publication of reports on findings; development of expanded
programs for the education and training of employers and employee~s
in recognition, avoidance, and prevention of accidents or unsafe or Un-
healthful working conditions in mines; and Federal enforcement of
mandatory health and safety standards promulgated under the Act or
enforcement under a "State Plan" agreement of State health and
safety standards substantially as effective as the Federal mandatory
standards. Standards promulgated under the Act appear in the Fed-
eral Register, Vol. 34, No. 145. Thursday, July 31, 1969, pp. 12503-
12527, inclusive and as corrected in Vol. 34, No. 152, Saturday, Au-
gust 9, 1969; Vol. 35, No. 38, Wednesday, February 25, 1970, pp 3660-
3678, inclusive and as corrected in Vol. 35, No. 50, Friday, March 13,
1970, and Vol. 35, No. 122, June 24, 1970, pp. 10299-10308 inclusive.
Part 55 of the standards applies to open pit mines; Part 56 applies to
sand, gravel, and crushed stone operations; and Part 57 applies to
underground mines. Those standards that are designated as manda-
tory become effective one year after publication. At least once each
calendar year a Federal inspection shall be made of each underground
mine subject to the Act. Federal inspections and investigations are
also required for the purpose of evaluating the manner in which a
State plan approved under Section 16 of the Act is being carried out.
Metal and nonmetal mine health and safety inspectors operate from
strategically located field stations organized under six District Man-
agers whose offices are situated in Pittsburgh, Pennsylvania; Birming-
ham, Alabama; Duluth, Minnesota; Dallas, Texas; Lakewood, Colo-
rado; and Alameda, California.
Text of Act
(Section Nos. refer to U.S. Code)
§ 721. Definitions.
For the ~iirposes of this chapter.
(a) The term "commerce" means trade, traffic, commerce, transpor-
tatiori, or communication between any State, the Commonwealth of
(937)
PAGENO="0256"
938
Puerto Rico, the District of Columbia, or any territory or possession
of the. United States, and any other place outside the respective
boundaries thereof, or wholly within the District of Columbia, or any
territory or possession of the Tjnited States, or between points in the
same State, if passing through any point outside the boundarie~
thereof.
(b) The term "mine" means (1) an area of land from which min~
erals other than coal or lignite are extracted in nonliquid form or, if
in liquid form, are extracted with workers underground, (2) private
ways and roads appurtenant to such area, and (3) land, excavations,
underground passageways, and workings, structures, facilities, equip-
ment, machines, tools, or other property, on the surface or under-
ground, used in the work of extracting such minerals other than coal
or lignite from their natural deposits in nonliquid form, or if in liquid
form, with, workers underground, or used in the milling of such min-
erals, except that with respect to protection against radiation hazards
such term shall not include property used in the milling of source
material as defined in the Atomic Energy Act of 1954, as amended.
(c) The term "operator" means the person, partnership, associa-
tion, or corporation, or subsidiary of a corporation operating a mine,
and owning the right to do so, and includes any agent thereof charged
with responsibility for the operation of such mine.
(d) The term "Secretary" means the Secretary of the Interior or
his duly authorized representative.
(e) The term "Board" means the Federal Metal and Nonmetallic
Mine Safety Board of Review created by section 729 of this title.
(Pub'. L. 89-577, § 2, Sept. 16, 1966, 80 Stat. 772.)
§ 722. Mines subject to chapter; declination of jurisdiction.
(a) Each mine the products of which regularly enter commerce, or
the operations of which affect commerce, shall be subject to this
chapter.
(b) The Secretary may, by published rules adopted pursuant to
the Administrative Procedure A,ct, decline to assert jurisdiction under
this chapter over any class or category of mines where, in the opinion
of the Secretary, the effect of the operations of such mines on com-
merce is not sufficiently substantial to warrant the exercise of juris-
diction under this chapter, and the record of injuries and accidents in
such class or category of mines warrants such a declination of jurisdic-
tion. (Pub. L. 89-577, §3, Sept. 16, 1966, 80 Stat. 773.)
§ 723. Investigations of metal and nonmetallic mines to obtain
information relating to health and safety conditions.
The Secretary of the Interior is authorized at any time to cause
to be made such inspections and investigations as he shall deem neces-
sary in mines which are subject to this chapter (1) for the purpose
of obtaining, utilizing, and disseminating information relating to
health and safety conditions in such mines, the causes of accidents
involving bodily injury or loss of life, or the causes of occupational
diseases originating therein, (2) for the purpose of determining
whether oi not there is compliance with a health and safety standard
or order issued under this chapter, or (3) for the purpose of evalu-
ating the manner in which a State plan approved under section 735
of this title is being carried out. At least once each calendar year the
PAGENO="0257"
939.
Secretary shall inspect each underground mine which is subject to
this chapter. (Pub. L. 89-577, § 4, Sept. 16, 1966, 80 Stat. 773.)
§ 724. Admission of investigators to mines.
For the purpose of making any inspection or investigation author-
ized by this chapter, authorized representatives of the Secretary shall
be entitled to admission to, and shall have the right of entry to, upon,
or through, any mine which is subject to this chapter. (Pub. L. 89-
577, § 5, Sept. 16, 1966, 80 Stat. 773.)
§ 725. Health and safety standards.
(a) Development, revision, and promulgation.
The Secretary shall develop, and from time to time revise, after
consultation with advisory committees appointed pursuant to section
726 of this title, and promulgate health and safety standards for the
purpose of the protection of life, the promotion of health and safety,
and the prevention of accidents in mines which are subject to th1s
chapter.
(b) Publication in Federal Register; compliance with mandatory
standards.
After consultation with an appropriate advisory committee estab-
lished pursuant to section 726 of this title, the Secretary, by a notice
published in the Federal Register, shall designate as mandatory stand-
ards those standards promulgated pursuant to subsection (a) of this
section which deal with conditions or practices of a kind which could
reasonably be expected to cause death or serious physical harm, and
the operators of mines to which such standards are applicable shall
comply with such mandatory standards pursuant to the provisions of
section 727 and section 728 of this title.
(c) Publication in Federal Register of proposed standards; submis-
sion of data, views, or arguments by interested persons, promul-
gation.
The Secretary shall publish in the Federal Register, health and
safety standards which he proposes to promulgate, and he shall spe-
cifically identify those standards which he proposes to designate as
mandatory standards, and he shall also specifically designate those
mandatory standards which have been recommended by an Advisory
Committee appointed pursuant to section 726 of this title. Interested
persons shall be afforded a period of not less than 30 days after the
publication of the proposed standards in which to submit written
data, views, or arguments. Except as provided in subsection (d) of
this section, the Secretary may, upon the expiration of such period
and after consideration of all relevant matter presented, promulgate
such standards.
(d) Objections; requests for public hearivgs; publication in Federal
Register; public hearings; evidence; findings; decision; revzew
by Unzted States Court of Appeals for the District of Columbia;
petitions; record; conclusiveness of findings; determination; re-
view by Supreme Court; stay of administrative decision.
(1) On or before the last day of a period fixed for the submission of
written data, views, or arguments, any person who may be adversely
75-623 0 - 74 - pt. 3 - 17
PAGENO="0258"
940
affected by a health and safety standard which the Secretary proposes
to promulgate and to designate as a mandatory standard may file
with the Secretary written objections thereto stating the grounds
therefor, and requesting .a public hearing (subject to the provisions of
the Administrative Procedure Act) on such objections. The Secretary
shall not promulgate any proposed mandatory standard respecting
which such objections have been filed, until he has taken final action
upon them as provided in paragraph (2) of this subsection. As soon
as practicable after the period for filing such objections has expired,
the Secretary shall publish in the Federal :Register a notice specifying
the proposed mandatory standards to which such objections have been
filed.
(2) If such objections requesting a public hearing are filed, as soon
after the expiration of the period for filing such objections as is practi-
cal, the Secretary, after due notice, shall hold a public hearing for
the purpose of receiving evidence relevant and material to the issues
raised by such objections. At the hearing, any interested person may
be heard. As soon as practicable after completion of the hearing, the
Secretary shall act upon such objections and make his decision public.
Such decision shall be based only on substantial evidence of record at
such hearing and shall set forth detailed findings of fact on which the
decision is based.
(3) Any person aggrieved by a decision of the Secretary under para-
graph (2) of this subsection may obtain a review of such order by the
United States Court of Appeals for the District of Columbia by filing
in such court within 20 days following the issuance of such decision
a petition praying that the decision of the Secretary be modified or
set aside in whole or in part. A copy of such petition shall forthwith
be served upon the Secretary, and thereupon the Secretary shall
certify and file in the court the record upon which the decision com-
plained of was issued. The findings of fact by the Secretary, if sup-
ported. by substantial evidence, shall be conclusive; but the court,
for good cause shown, . may re.mand the case to the Secretary to take
further evidence, and the Secretary may thereupon make new or
modified findings of fact and may modify his previous action and
shall certify to the court the record of the further proceedings. Such
new or modified findings of fact shall likewise be conclusive if sup-
ported by substantial evidence. The court shall have jurisdiction to
affirm the action of the Secretary or to set it aside, in whole or in part.
The judgment of the court shall be subject to review by the Supreme
Court of the United States upon certiorari or certification as provided
in section 1254 of Title 28. The commencement of a proceeding under
this paragraph (3) shall not, unless specifically ordered by the court,
operate as a stay of the Secretary's decision.
(e) Same; provisions inapplicable to proposed mandatory standards
recommended by Advisory Committee.
The provisions of subsection (d) of this section shall not be appli-
cable to any proposed mandatory standard which has been recom-
mended by an Advisory Committee appointed pursuant to section 726
of this title. (Pub. L. 89-577, § 6, Sept. 16, 1966, 80 Stat. 774.)
PAGENO="0259"
941
§ 726. Advisory committees.
(a) Establishment; representation of interests.
The Secretary is authorized to establish advisory committees to
assist him in the development of health and safety standards for
mines which are subject to this chapter, and to advise him on other
matters relating to health and safety in such mines. Each such ad-
visory committee shall include among its members an equal number
of persons qualified by experience and affiliation to present the view-
point of operators of such mines, and of persons similarly qualified
to present the viewpoint of workers in such mines, as well as one or
more representatives of mine inspection or safety agencies of the
States.
(b) Compensation and travel expenses.
Members appointed to such a committee from private life shall,
while serving on business of the committee, be entitled to receive com-
pensation at rates fixed by the Secretary, but not exceeding $100 per
day, including travel time; and while so serving away from their
homes or regular places of business, they may be paid travel expenses
and per diem in lieu of subsistence at the rates authorized by section
73b-2 of Title 5. (Pub. L. 89-577, § 7, Sept. 16, 1966, 80 Stat. 775.)
§ 727. Findings and orders.
(a) Withdrawal and debarment from danger area; orders; persons
exempt.
If, upon any inspection or investigation of a mine which js subject
to this cl1apter, an authorized representative of the Secretary finds
that conditions or practices in such mine are such that a danger exists
which could reasonably be expected to cause death or serious physical
harm immediately or before the imminence of such danger can be
eliminated, such representative shall determine the extent of the area
of such mine throughout which the danger exists, and thereupon
issue an order requiring the operator of such mine to cause all persons,
except the following persons whose presence in such area is `necessary
to eliminate the danger described in such order, to be withdrawn from,
and to be debarred from, entering such area:
(1) Any persons whose presence in such area is necessary, in the
judgment of the operator of the mine, to eliminate the danger described
in the order; (2) any public official whose official duties require him
to enter such area; or (3) any legal or technical consultant, or any
representative of the employees of the mine, who is a certified person
qualified to make mine examinations, or is accompanied by such a
person, and whose presence in such area is necessary, in the iudgment
of the operator of the mine, for the proper investigation of the con-
clitions described in the order.
(b) Abatement of violations; time limit; withdrawal a'nd debarment
from area~ orders; persons exempt.
If, upon any such inspection or investigation, an authorized repre-
sentative finds that there has been a failure to comply with a manda-
tory standard which is applicable to such mine, but that such failure
PAGENO="0260"
942
to comply has not created a danger that could reasonably be expected
to cause death or serious physical harm in such mine immediately or
before the imminence of such danger can be eliminated, he shall find
what would be a reasonable period of time within which such violation
should be totally abated and thereupon issue a notice fixing a reason-
able time for the abatement of the violation. If, upon the expiration
of such period of time as originally fixed or extended, the authorized
representative finds that such violation has not been totally abated,
and if he also finds that such period of time should not be further
extended, he shall also find the extent of the area which is affected
by such violation. Thereupon, lie shall promptly make an order re-
quiring the operator of such mine to cause all persons in such area,
excepting the following persons whose presence in such area is neces-
sary to abate the violation described in the order, to be withdrawn
from, and to be debarred from, entering such area:
(1) Any person whose presence in such area is necessary, in the
judgment of the operator of the mine, to abate the violation described
in the order; (2) any public official whose official duties require him
to enter such area; or (3) any legal or technical consultant, or any
representative of the employees of the mine, who is a certified person
qualified to make mine examinations, or is accompanied by such a per-
son, and whose presence in such area is necessary, in the judgment
of the operator of the mine, for the proper investigation of the condi-
tion described in the order.
(c) Description of conditions or practices and area.
Findings~ and orders issued pursuant to this section shall contain
a detailed description of the conditions or practices which cause and
constitute a situation of imminent danger or a violation of a manda-
tory standard, and a description of the area of the mine throughout
which persons must be withdrawn and debarred.
(d) Notice; written form~; signatures; annulm~ent, cancellation, or
revision of orders.
Each finding made and notice or order issued under this section
shall be given promptly to the operator of the mine to which it per-
tains by the person making such finding or order, and all such find-
ings, orders, and notices shall be in writing, and shall be signed by
the person making them. A notice or order issued pursuant to this
section may be annulled, canceled, or revised by an authorized repre-
sentative of the Secretary.
(~) State inspection and report; review of orders.
If an order is made pursuant to subsection (a) of this section, and
a State inspector did not participate in the inspection on which such
order is based, the duly authorized representative of the Secretary
who issued the order shall notify the State mine inspection or safety
agency immediately, but not later than twenty-fours after the issu-
ance of such order, that such order has been issued. Following such
order the operator of the mine may immediately request the State
iiiine inspection or safety agency to assign a State inspector to inspect
the mine. The State agency shall then promptly assign a State in-
spector to inspect the mine affected by such order and file an inspec-
PAGENO="0261"
943
tion report with the Secretary and the State agency. The order of
the duly authorized representative of the Secretary shall remain in
effect, but shall immediately be subject to review as provided in this
chapter. (Pub. L. 89-577, § 8, Sept. 16, 1966, 80 Stat. 775.)
§ 728. Review by Secretary.
(a) Application for annulment or revision of order closing mine be-
cause of danger; inspection; findings; determination.
An operator notified of an order made pursuant to section 727 (a)
of this title may apply to the Secretary for annulment or revision of
such order. Upon receipt of such application the Secretary shall make
a special inspection of the mine affected by such order, or cause three
duly authorized representatives of the Secretary of the Interior, other
than the representative who made such order, to make such inspec-
tion of such mine and to report thereon to him. Upon making such
special inspection himself, or upon receiving the report of such inspec-
tion made by such representatives, the Secretary shall find whether or
not danger throughout the area of such mine, as set out in such order
existed at the time of making such special inspection. If he finds that
such danger did not then exist throughout such area of such mine,
he shall make an order, consistent with his findings, revising or annul-
ing the order under review. If he finds that such danger did then exist
throughout such area of such mine, he shall make an order denying
such application.
(b) Application for annulment or revision of order closing ,nine for
failure to abate violation; inspection; findings; determination.
An operator notified of an order made pursuant to section 727 (,b)
of this title may apply to the Secretary for annulment or revision of
such order. Upon receipt of such application the Secretary shall
make a special inspection of the mine affected by such order, or cause
three duly authorized representatives of the Secretary of the Inteior,
other than the representative who made such order, to make such in-
spection of such mine and report thereon to him. Upon making such
special inspection himself, or upon receiving the report of such inspec-
tion made by such representatives, the Secretary shall find whether or
not there was a violation of a mandatory safety standard as described
in such order, at the time of the making of such order. If he finds there
was no such violation, he shall make an order annuling the order under
review. If he finds there was such a violation, he shall also find whether
or not such violation was totally abated at the time of the making of
such special inspection. If he finds that such violation was totally
abated at such time, he shall make an order annuling the order under
review. If he finds that such violation was not totally abated at. such
time, he shall find whether or not the period of time within which such
violation should be totally abated, fixed under section 727(b) of this
title, should be extended. If he finds that such period of time should be
extended, he shall find what a reasonable extension of such period of
time would be. Thereupon he shall find the extent of the area of such
mine which was affected by such violation at the time such special
inspection was made, and then he shall make an order, consistent with
his findings, revising the order under review. If he finds that such
PAGENO="0262"
~44
violation was not totally abated at the time of such special inspection,
and that such period of time should be not extended, he shall find
the extent of the area of such mine which was affected by such viola-
tion at the time such special inspection was made, and he shall then
make an order, consistent with his findings, affirming or revising the
order under review.
(c) Rapidity of action.
In view of the urgent need for prompt decision of matters sub-
mitted to the Secretary under this section, all actions which the Sec-
retary or his representatives are required to take under this section
shall be taken as rapidly as practicable, consistent with adequate con-
sideration of the issues involved. (Pub. L. 89-577, § 9, Sept. 16, 1966,
80 Stat. 777.)
§ 729. Federal Metal and Nonmetallic Mine Safety Board of
Review.
(a) Creation; com~position; appointment.
An agency is hereby created to be known as the Federal Metal and
Nonmetallic Mine Safety Board of Review, which shall be composed
of five members who shall l)e appointed by the President, by and with
the advice and consent of the Senate.
(b) Terms of OffIce; vacancies; removal.
The terms of office of members of the Board shall be five years, ex-
cept that the terms of office of the members first appointed shall com-
mence on September 16, 1966, and shall expire one at the end of one
year, one at the end of two years, one at the end of three years, one at
the end of four years and one at the end of five years, as designated by
the President at the time of appointment. A member appointed to
fill a vacancy caused by the death, resignation, or removal of a member
prior to the expiration of the term for which he was appointed shall
be appointed only for the remainder of such unexpired term. The mem-
bers of the Board may be removed by the President for inefficiency,
neglect of duty, or malfeasance in office.
(c) Compensation; travel expenses; qualifications of members.
Each member of the Board shall be compensated at the rate of $50
for each day of actual service (including each day he is traveling on
official business) and shall, notwithstanding the Travel Expense Act
of 1949, be fully reimbursed for traveling, subsistence, and other re-
lated expenses. The Board, at all times, shall consist of two persons
who by reason of previous training and experience may reasonably
be said to represent the viewpoint of metal and nonmetallic mine opera-
tors, two persons who by reason of previous training and experience
may reasonably be said to represent the viewpoint of metal and non-
metallic mine workers, and one person, who shall be Chairman of the
Board, who shall be a graduate engineer with experience in the metal
and nonmetallic mining industry or shall have had at least five years'
experience as a practical mining engineer in the metal and nonmetallic
mining industry, and who shall not, within one year of his appoint-
ment as a member of the Board, have had a pecuniary interest in, or
have been regularly employed or engaged in, the metal or nonmetallic
PAGENO="0263"
945
mining industry, or have regularly represented either metal or non-
metallic mine operators or workers, or have been an officer or employee
of the Department of the Interior assigned to duty in the Bureau of
Mines.
(d) Principal office; place of hearings; seal.
The principal office of the Board shall be in the District of Columbia.
Whenever the Board deems that the convenience of the public or of
the parties may be promoted, or delay or expense may be minimized,
it may hold hearings or conduct other proceedings at any other place.
The Board shall have an official seal which shall be judicially noticed
and which shall be preserved in the custody of the secretary of the
Board.
(e) Elmploym/ent of personnel.
The Board shall, without regard to the civil service laws, appoint
and prescribe the duties of a secretary of the Board and such legal
counsel as it deems necessary. Subject to the civil service laws, the
Board shall appoint such other employees as it deems necessary in
exercising its powers and duties. The compensation of all employees
appointed by the Board shall be fixed in accordance with chapter 51
and subchapter III of chapter 53 of Title 5.
(f) Quorum; public hearings and records.
Three members of the Board shall constitute a quorum, and official
actions of the Board shall be taken only on the affirmative vote of at
least three members; but a special panel composed of one or more mem-
bers, upon order of the Board, shall conduct any hearing provided
for in section 730 of this title and submit the transcript of such hear-
ing to the entire Board for its action thereon. Every official act of the
Board shall be entered of record, and its hearings and records thereof
shall be open to the public.
(g) Hearings and determinatioii-s.
The Board shall hear and determine applications filed pursuant to
section 730 of this title for annulment or revision of orders made pur-
suant to section 727 or section 728 of this title. The Board shall not
make or cause to be made any inspection of a mine for the purpose of
determining any pending application.
(h) Rules of proceedings.
The Board is authorized to make such rules as are necessary for the
orderly transaction of its proceedings, which shall include require~
ment for adequate notice of hearings to all parties.
(i) Sub penas.
Any member of the Board may sign and issue subpenas for the at-
tendance and testimony of witnesses and the production of relevant
papers, books, and documents, and administer oaths. Witnesses sum-
moned before the Board shall be paid the same fees and mileage that
are paid witnesses in the courts of the United States.
(j) Depositions; notice; witness fees.
The Board may order testimony to be taken by deposition in any
proceeding pending before it, at any stage of such proceeding. Reason-
PAGENO="0264"
946
able notice must first be given in writing by the party or his attorney
proposing to take such deposition to the opposite party or his attorney
of record, which notice shall state the name of the witness and the
time and place of the taking of his deposition. Any person may be
compelled to appear and depose, and to produce books, papers, or
documents, in the same manner as witnesses may be compelled to
appear and testify and produce like documentary evidence before the
Board, as provided in subsection (1) of this section. Witnesses whose
depositions are taken under this subsection, and the persons taking
such depositions, shall be entitled to the same fees as are paid for like
services in the courts of the United States.
(k) Contumacy; jurisdiction of court; contempts.
In the case of contumacy by, or refusal to obey a subpena served
upon, any person under this section, the Federal district court for any
district in which such person is found or resides or transacts business,
upon application by the United States, and after notice to such person
and hearing, shall have jurisdiction to issue an order requiring such
person to appear and give testimony before the BOard or to appear
and produce documents before the Board, or both; and any failure to
obey such order of the court may be punished by such court as a con-
tempt thereof.
(1) Reports to Congress.
The Board shall submit annually to the Congress as soon as practi-
cable after the beginning of each regular session, a full report of its
activities during the preceding calendar year. Such report shall in-
clude, either in summary or detailed form, information regarding the
cases heard by it and the disposition of each. (Pub. L. 89-577, § 10,
Sept. 16, 1966, 80 Stat. 778.)
§ 730. Review by Board.
(a) Application for annulment or revision of closing order.
An operator notified of an order made pursuant to section 727 of this
title may apply to the Federal Metal and Nonmetallic Mine Safety
Board of Review for annulment or revision of such order without seek-
ing its annulment or revision under section 728 of this title. An oper-
ator notified of an order made pursuant to section 728 of this title may
apply to the Board for annulment or revision of such order.
(b) Contents and allegations of applications; service upon Secretary.
The operator shall be designated as the applicant in such proceed-
ing, and the application filed by him shall recite the order complained
of and other facts sufficient to advise the Board of the nature of the
proceeding. He may allege in such application: that danger as set out
in such order does not exist at the time of the filing of such application;
that violation of a mandatory safety standard, as set out in such order,
has not occurred; that such violation has been totally or partially
abated; that such violation has been totally or partially abated; that
the period of time within which such violation should be totally abated,
as fixed in the findings upon which such order was based, was not
ieasonable; or that the area of the mine described in such order as the
area affected by the violation referred to in such order is not so affected
PAGENO="0265"
947
at the time of the filing of such application. The Secretary shall be
the respondent in such proceeding, and the applicant shall send a copy
of such application by registered mail or by certified mail to the Sec-
retary at Washington, District of Columbia.
(a) Hearing.
Immediately upon the filing of such an application the Board shall
fix the time for a prompt hearing thereof.
(d) Temporary relief pending hearing.
Pending such hearing the applicant may file with the Board a written
request that the Board grant such temporary relief from such order as
the Board may deem just and proper. Such temporary relief may be
granted by the Board only after a hearing by the Board at which both
the applicant and the respondent were afforded an opportunity to be
heard, and only if respondent was given ample notice of the filing of
applicant's request and of the time and place of the hearing thereon as
fixed by the Board.
(e) Evidence.
The Board shall not be bound by any previous findings of fact by
the respondent. Evidence relating to the making of the order com-
plained of and relating to the questions raised by the allegations of
the pleadings or other questions pertinent in the proceeding may be
offered by both parties to the proceeding. If the respondent claims
that imminent danger or violation of a mandatory safety standard, as
set out in such order, existed at the time of the filing of the application,
the burden of proving the then existence of such danger or violation
shall be upon the respondent, and the respondent shall present his
evidence first to prove the then existence of such danger or violation.
Following presentation of respondent's evidence the applicant may
present .his evidence, and thereupon the respondent may present evi-
dence to rebut the applicant's evidence.
(f) Findings on order closing mine because of danger; determination.
If the proceeding is one in which an operator seeks annulment or
revision of an order made pursuant to section 727 (a) of this title the
Board, upon conclusion of the hearing, shall find whether or not danger
throughout the area of such mine as set out in such order existed at
the time of the filing of the operator's application. If the Board finds
that such danger did not then exist throughout such area of such mine,
the Board shall make an order, consistent with its findings, revising
or annulling the order under review. If the Board finds that such
danger did then exist throughout such area of such mine, the Board
shall make an order denying such application.
(g) Findings on order closing mine for failure to abate violatio~i;
determination.
If the proceeding is one in which an operator seeks annulment or
revision of an order made pursuant to section 727(b) of this title, the
Board upon conclusion of the hearing shall find whether or not there
was a violation of a mandatory safety standard as described in such
order, at the time of the making of such order. If the Board finds there
was no such violation, the Board shall make an order annulling the
PAGENO="0266"
048
order under review. If the Board finds there was such a violation, the
Board shall also find whether or not such violation was totally abated
at the time of the filing of the operator's application. If the Board finds
that such violation was totally abated at such time, the Board shall
make an order annulling the order under review. If the Board
finds that such violation was not totally abated at such time, the Board
shall find whether or not the period of time within which such viola-
tion should be totally abated fixed under section 727(b) or section
728(b) of this title should be extended. If the Board finds that such
period of time should be extended, the Board shall also find what a
reasonable extension of time should be, and shall immediately also
find the extent of the area of such mine which was affected by such
violation at the time of the filing of such application and the Board
shall then make an order consistent with its findings, revising the
order under review. if the Board finds that such violation was not
totally a bated at the time of the filing of the operator's application
and that such period of time should not be extended, the Board shall
rind the extent of the area of such mine which was affected by such
violation at such time, and shall make an order, consistent with its
findings, affirming or revising the order under review.
(ii) Contents and forim of flndings; notification of parties; record.
Each finding and order made by the Board shall be in writing. It
shall show the date on which it is made, and shall bear the signatures
of the members of the Board who concur therein. Upon making a find-
ing and order the Board shall cause a true copy thereof to be sent by
registered mail or by certified mail to all parties or their attorneys of
record. The Board shall cause each such finding and order to be entered
on its official record, together with any written opinion prepared by
any members in support of, or dissenting from, any such finding or
order.
(i) Rapidity of action.
In view of the urgent need for prompt decision of matters submitted
to the Board under this section, all action which the Board is required
to take under this section shall be taken as rapidly as practicable, con-
si stent with adequate consideration of the issues involved. (Pub. L.
8~-577, § 11, Sept. 16, 1966, 80 Stat. 779.)
§ ~& Judicial review
(a) Court of appeals; notice of appeal.
Any final order issued by the Board under section 730 of. this title
shall. be subject to judicial review by the United States court of appeals
for the circuit in which the mine, affected it located, upon the filing in
such court of a notice of appeal by the Secretary or the operator ag-
grieved by such final order within thirty days from the date of the
making of such final order.
(b) Copies of notice of appeal, trarseript.
The party making such appeal shall fof'thwith send a copy of such
notice of appeal, by registered mail or by certified mail, to the other
party and to the Board. Upon receipt of such copy of a notice of ap-
peal the Board shall promptly certify and file in such court a complete
transcript of the. record upon which the order complained of was made.
PAGENO="0267"
949
The costs of such transcript shall be paid by the party making the
appeal.
(c) Procedure.
The court shall hear such appeal on the record made before the
Board, and shall permit argument, oral or written or both, by both
parties. The court shall permit such pleadings, in additions to the
pleadings before the Board, as it deems to be required or as provided
for in the Rules of Civil Procedure governing appeals in such court.
(d) Postponement of order.
Upon such conditions as may be required and to the extent necessary
to prevent irreparable injury the United States court of appeals may,
after due notice to and hearing of the parties to the appeal, issue all
necessary and appropriate process to postpone the effective date of the
final order of the Board or to grant such other relief as may be appro-
priate pending final determination of the appeal.
(e) Determination.
The United States court of appeals may affirm, annul, or revise the
final order of the Board, or it may remand the proceeding to the Board
for such further action as it directs. The findings of the Board as to
facts, if supported by substantial evidence on the record considered as
a whole, shall be conclusive.
(f) Supreme Court.
The decision of a United States court of appeals on an appeal from
the Board shall be final, subject only to review by the Supreme Court
as provided in section 1254 of Title 28. (Pub. L. 89-577, § 12, Sept. 16,
1966, 80 Stat. 781.)
§ 732. Accident and related reports to Secretary; publications;
public inspection of information.
The Secretary shall require operators of mines which are subject to
this chapter to submit, at least annually and at such other times as he
deems necessary, and in such form as he may prescribe, reports of ac-
cidents, injuries, and occupational diseases, and related data, and the
Secretary shall compile, analyze, and publish, either in summary or
detailed form, the information obtained; and all information, reports,
orders, or findings, obtained or issued under this chapter may be pub-
lished and released to any interested person and shall be made' available
for public inspection. (Pub. L. 89-577, § 13, Sept. 16, 1966, 80 Stat.
782.)
§ 733. Penalties for violations; civil and criminal liability.
(a) Whenever an operator (1) violates or fails or refuses to com-
ply with any order of withdrawal and debarment issued under section
727 or section 728 of this title, or (2) interferes with, hinders, or de-
lays the Secretary, or .his duly authorized representative, in carrying
out his duties under this chapter, or (3) refuses to admit an authorized
representative of the Secretary. to any mine which is subject to this
chapter, or (4) refuses to permit the inspection or investigation of
any mine which is subject to this chapter, or of an accident, injury,
or. occupational disease occurring in or connected with such a mine or
(5): .béhigsubject to the provisions of section 732 of this title, refuses
PAGENO="0268"
950
to furnish any information or report requested by the Secretary, a
civil action for preventive relief, including an application for a
permanent. or temporary injunction, restraining order, or other order,
may be instituted by the Secretary in the district court of the United
States of the district in which the mine in question is located or in
which the mine operator has its principal office.
(b) Whoever violates or fails or refuses to comply with an order of
withdrawal and debarment issued (1) under subsection (a) of sec-
tion 727 of this title or (2) under subsection (b) of section 727 of
this title if the failure to comply with an order of abatement has
created a danger that could cause death or serious physical harm in
such mine immediately or before the imminence of such danger can
be eliminated, shall upon conviction thereof be punished for each s~.ich
offense by~a fine of not less than $100, or more than $3,000, or by im-
prisonmentnot to exceed sixty days, or both. In any instance in which
such offense is committed by a corporation, the officer or authorized
representative of such corporation who knowingly permits such offense
to be committed shall, upon conviction, be subject to the same fine or
imprisonment, or both. (Pub. L. 89-577, § 14, Sept. 16, 1966, 80 Stat.
782.)
§ 734. Education and training.
The Secretary shall develop expanded programs for the education
and training of employers and employees in the recognition, avoid-
ance, and prevention of accidents or unsafe or unhealthful working
conditions in mines which are subject to this chapter. (Pub. L. 89-
577, § 15, Sept. 16, 1966, 80 Stat. 782.)
§ 735. State plans.
(a) Cooperation with State agencies.
In order to promote sound and effective coordination in Federal
and State activities within the fie'd covered by this chapter~ the Secre-
tary shall cooperate with the official mine inspection or safety agencies
of the several States.
(b) Submission.
Any State which, at any time, desires to develop and enforce health
and safety standards in mines located in. the State which are subject
to this chapter shall submit, through a State mine inspection or safety
agency, a State plan for the development of such standards and their
enforcement.
(c) Approval by Secretary.
The Secretary shall approve the plan submitted by a State under
subsection (b) of this section, or any modification thereof, whenever
the State gives evidence satisfactory to the Secretary that under such
plan-
(1) the State agency submitting such plan is the sole agency
responsible for administering the plan throughout the State and
contains satisfactory evidence that such agency will have the
authority to carry out the plan: Provided, That the Secretary
may, upon request of the Governor or other appropriate executive
or legislative authority of the State responsible for determining
or revising the organizational structure of State government,
PAGENO="0269"
951
waive the single State agency provision hereof and approve an-
other State administrative structure or arrangement if the Sec-
retary determines that the objectives of this chapter will
not be endangered by the use of such other State structure or
arrangement.
(2) such agency has adequate legal authority to enforce existing
health and safety standards for the purpose of the protection of
life, the promotion of health and safety, and the prevention of
accidents in mines in the State that are subject to this chapter,
which are, in his judgment, substantially as effective for such pur-
poses as the mandatory standards designated under section 725 (b)
of this title and which provide for inspection at least annually
of all such mines, other than quarries and sand and gravel pits,
(3) the agency has adequate qualified personnel necessary for
the enforcement of the plan,
(4) the State will devote adequate funds to the administration
and enforcement of such standards,
(5) reasonable safeguards exist against loss of life of property
arising from mines which are closed or abandoned after the effec-
tive date of this chapter, and
(6) the agency shall make such reports to the Secretary, in
such form and containing such information, as the Secretary shall
from time to time require.
(d) Withdrawal of approval.
The Secretary shall, on the basis of reports submitted by the State
agency and his own inspection of mines, make a continuing evaluation
of the manner in which each State having a plan approved under this
section is carrying out such plan. ~\Vhenever the Secretary finds, after
affording due notice and opportunity for a hearing, that in the admin-
istration of the State plan there is a failure to comply substantially
with any provision of the State plan (or any assurance contained
therein), he shall notify the State agency of his withdrawal of ap-
proval of such plan and upon receipt of such notice such plan shall
cease to be in effect.
(e) Federal provision~s inapplicable.
The provisions of sections 727(b) and 728(b) of this title shall not
be applicable in any State in which there is in effect a State plan
approved under subsection (c) of this section. (Pub. L. 89-577, § 16,
Sept. 16, 1966, 80 Stat. 782.)
§ 736. Administration by Bureau of Mines; employment, powers,
duties, and responsibilities of officers and employees; quali-
fications of mine inspectors.
The Secretary shall provide that the major responsibility for ad-
ministering the provisions of this chapter shall be vested in the Bureau
of Mines of the Department of the Interior which has the major
responsibility for carrying out the Federal Coal Mine Safety Act.
The Secretary acting through the Bureau, shall have authority to ap-
point, subject .to the civil service laws, such officers and employees as
he may deem requisite for the administration of this chapter; and to
prescribe powers, duties, and responsibilities of all officers and em-
ployees engaged in the administration of this chapter: Provided, how-
ever, That, to the maximum extent feasible, in the selection of persons
PAGENO="0270"
952
for appointment as mine inspectors, no person shall be so selected
unless he has the basic qualifications 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 their previous practical experience in the State, district, or region,
and in the particular type of mining operation where such inspections
are to be made. (Pub. L. 89-577, § 17, Sept. 16, 1966, 80 Stat. 783.)
§ 737. Applicability of Administrative Procedure Act.
The Administrative Procedure Act shall not apply to the making of
any finding, order, or notice pursuant to this chapter, or to any pro-
ceeding for the annulment or revision of any such finding, order, or
notice. (Pub. L. 89-577, § 18, Sept. 16, 1966, 80 Stat. 784.)
§ 738. Effect on State laws.
(a) No State or territorial law in effect upon the effective date of
this chapter or which may become effective thereafter, shall be super-
seded by any provision of this chapter, except insofar as such State or
territorial law is in conflict with this chapter,. or with orders is~ued
pursuant to this chapter. . . .
(b) Provisionsin any State or territorial law in effect upon the effec-
tive date of this chapter, or which may become effective thereafter,
which provide for greater safety of persons in a mine as. defined in this
chapter, than~ do provisions of this chapter, which relate to the same
phase of such operations, shall not be construed or held to be in con-
fiict with this chapter. Provisions in any State or territorial law in
effect upon the effective date of this chapter, or which may become
effective thereafter, which provide for the safety of persons in a
mine as defined in this chapter concerning which no provision is con-
tained in this chapter, shall not be construed or held to be superseded
by this chapter.
(c) Nothing in this chapter shall be construed or held to supersede
or in any manner affect the workmen's compensation laws of any State
or territory, or to enlarge or diminish or affect in any other manner
the common law or statutory rights, duties, or liabilities of employers
and employees under State or territorial laws in respect to injuries,
occupational or other diseases, or death of employees arising out of, or
in the course of, employment. (Pub. L. 89-577, § 19, Sept. 16, 1966, 80
Stat. 784.)
§ 739. Reports to Congress.
The Secretary shall submit annually to the Congress, as soon as
practicable after the beginning of each regular session, a full report
of the administration of his functions under this chapter during the
preceding calendar year. Such report shall include, either in summary
or detailed form, the information obtained by him under this chapter,
together with such findings and comments thereon and such recom-
mendations for legislative action as he may deem proper. (Pub. L.
89-577, § 20, Sept. 16, 1966, 80 Stat. 784~)
§ 74O~ Authorization of appropriations.
There are authorized to be appropriated, out of any moneys in the
Treasury not otherwise appropriated, such sums as may be necessary
to carry out the provisions of this chapter. (Pub. L. 89-577, § 21,
Sept. 16, 1966,80 Stat. 784.)
PAGENO="0271"
953
Public Law 89-577
~1iiffl1~J~ 89th Congress, H. R. 8989
September 16, 1966
To promote health and safety in metal and nonmetallic mineral industries,
and for other purposes.
Be it enacted by the Senate and Howse of Representatives of the
United States of America in Congress assembled, That this Act may Federal Metal
be cited as the "Federal Metal and Nonmetallic Mine Safety Act". and Nonmetallic
Nine Safety Act.
DEFINITIONS AND EXEMPTIONS
SEC. 2. For the purposes of this Act.
(a) The term "commerce" means trade, traffic, commerce, transpor-
tation, or communication between any State, the Commonwealth of
Puerto Rico, the District of Columbia, or any territory or possession
of the United States, and any other place outside the respective bound-
aries thereof, or wholly within the District of Columbia, or any
territory or possession of the United States, or between points in
the same State, if passing through any point outside the boundaries
thereof.
(b) The term "mine" means (1) an area of land from which minerals
other than coal or lignite are extracted in nonliquid form or, if in liquid 80 STAT. 7.7~
form, are extracted with workers underground, (2) private ways and 80 STAT. 773
roads appurtenant to such area, and (3) land, excavations, undcr-
ground passageways, and workings, structures, facilities, equipment,
machines, tools, or other property, on the surface or underground, used
in the work of extracting such minerals other than coal or lignite from
their natural deposits in nonliquid form, or if in liquid form, with
workers underground, or used in, the milling of such4kiiinerals, except
that with respect to protection against, radiation hazards such term
shall not include property used in the milling of source material as
defined in the Atomic Energy Act of 1954, as amended. 68 Stat. 919.
(c) The term "operator" means the person, partnership, associat.ion, 42 USC 2013.
or corporation, or subsidiary of a corporation operating a mine, and note.
owning the right to do so, and includes any agent thereof charged with
responsibility for the operation of such mine.
(d) The term "Secreta.ry" means the Secretary of the Interior or his
duly aut.horized representative.
(e) The term "Board" means the Federal Metal and Nonthetallic
Mine Safety Board of Review created by section 10.
SEC. 3. (a) Each mine the products of which regularly enter corn- Applicability.
merce, or the operations of which affect commerce, shall be subject to
this Act.
(b) The Secretnry may, by published rules adopted pursuant to t.he
Administrative Procedure Act, decline to assert jurisdiction under this Declination of
Act over any class or category of mines where, in the opinion of the jurisdiction.
Secretary, the effect of the operations of such mines 011 commerce is 60 Stat. 237.
not sufficiently substantial to warrant the exercise of jurisdiction under 5 USC 1001 note.
t.his Act, and t.he record of injuries and accidents in such class or cate-
gory of mines warrants such a declination of jurisdiction.
INSPECTIONS
SEC. 4. The Secretary of the Interior is authorized at any time to
cause to be made such inspections .and investigations as he shall deem
necessary in mines which are subject to this Act (1) for the purpose of
obtaining, utilizing, and disseminating information relating to health
and safety conditions in such mines, the causes of accidents involving
bodily injury or loss of life, or the causes of occupational diseases.
PAGENO="0272"
954
Pub. Law 89-577 - 2 - September 16, 1966
originating therein, (2) for the purpose of determining whether or
not there is compliance with a health and safety standard or order
issued under this Act, or (3) for the purpose of evaluating the manner
in which a State plan approved under section 16 is being carried out.
At least once each calendar year the Secretary shall inspect each under-
ground mine which is subject to this Act.
SEC. 5. For the purpose of making any inspection or investigation
authorized by this Act, authorized representatives of the Secretary
shall be entitled to admission to, and shall have the right of entry to,
80 STAT. 773 upon, or through, any mine which is subject to this Act.
80 STAT. 774
HEALTH AND SAFETY STANDARDS
SEC. 6. (a) The Secretary shall develop, and from time to time
revise, after consultation with advisory committees appointed pur-
suant to section 7 of this Act, and promulgate health and safety
standards for the purpose of the protection of life, the promotion of
health and safety, and the prevention of accidents in mines which are
subject to this Act.
Publication in (b) After consultation with an appropriate advisory committee
Federal Register. estal)lished pursuant to section 7 of this Act, the Secretary, by a notice
published in the Federal Register, shall designate as mandatory
standards those standards promulgated pursuant to subsection (a)
of this section which deal with conditions or practices of a kind which
could reasonably be expected to cause death or serious physical harm,
and the operators of mines to which such standards are applicable
shall comply with such mandatory standards pursuant to the provi-
sions of section 8 and section 9 of this Act.
(c) The Secretary shall publish in the Federal Register, health
and safety standards which he proposes to promulgate, and he shall
specifically identify those standards which he proposes to designate
as mandatory standards, and he shall also specifically designate those
mandatory standards which have been recommended by an Advisory
Committee appointed pursuant to section 7 of this Act. Interested
persons shall be afforded a period of not less than 30 days after the
publication of the proposed standards in which to submit written
data, views, or arguments. Except as provided in subsection (d)
of this section, the Secretary may, upon the expiration of such period
and after consideration of all relevant matter presented, promulgate
such standards.
Requests for (d) (1) On or before the last. day of a period fixed for the submis-
public hearing. sion of written data, views, or arguments, any person who may be
adversely affected by a health and safety standard which the Secretary
proposes to promulgate and to designate as a mandatory standard may
file with the Secretary w-ritten objections thereto stating the grounds
therefor, and requesting a public hearing (subject to the provisions
60 Stat. 237. of the Administrative Procedure Act) on such objections. The Secre-
5 USC 1001 note. tary shall not promulgate any proposed mandatory standard respect-
ing which such objections have been filed, until he has taken final
action upon them as provided in paragraph (2) of this subsection.
Publication in As soon as practicable after the period for filing such objections has
Federal Register. expired, the Secretary shall publish in the Federal Register a notice
specifying the proposed mandatory standards to which such objections
have been filed.
(2) If such objections requesting a public hearing are filed, as soon
after the expiration of the period for filing such objections as is prac-
tical, the Secretary, after due notice, shall hold a public hearing for
the purpose of receiving evidence relevant and material to the issues
raised by such objections. At the hearing, any interested person may
PAGENO="0273"
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September 16, 1966 - 3 - Pub. Law 89-577
80 STAT. 775
be heard. As soon as practicable after completion of the hearing, the
Secretary shall act upon such objections and make his decision public.
Such decision shall be based only on substantial evidence of record at
stch hearing and shall set forth detailed findings of fact on which the
decision is based.
(3) Any person aggrieved by a decision of the Secretary under Review of order.
paragraph (2) of this subsection may obtain a review of such order
by the United States Court of Appeals for the District of Columbia
by filing in such court within 20 days following the issuance of such
decision a petition praying that the decision of the Secretary be modi-
fied or set aside in whole or in part. A copy of such petition shall
forthwith be served upon the Secretary, and thereupon the Secretary
shall certify and file in the court the record upon which the decision
complained of was issued. The findings of fact by the Secretary, if
supported by substantial evidence, shall be conclusive; but the court,
for good cause shown, may remand the case to the Secretary to take
further evidence, and the Secretary may thereupon make new or
modified findings of fact and may modify his previous action and shall
certify to the court. the record of the further proceedings. Such new
or modified findings of fact shall likewise be conclusive if supported
by substantial evidence. The court shall have jurisdiction to affirm
the action of the Secretary or to set it aside, in whole or in part. The
judgment. of the court shall be subject to review by the Supreme Court
of the United States upon certiorari or certification as provided in
section 1254 of title 28, United States Code. The commencement of 62 Stat. 928.
a proceeding under this paragraph (3) shall not, un'ess specifically
ordered by the court, operate as a stay of the Secretary's decision.
(e) The provisions of subsection (d) of this section shaH not be
applicable to any proposed mandatory standard which has been recom-
mended by an Advisory Committee appointed pursuant to section 7
of this Act.
ADVISORY COMMITrEES
SEC. 7. (a) The Secretary is authorized to establlsh advisory com-
mittees to assist him in the development of heallh and safety standards
for mines which are subject to this Act, and to advise him on other
matters relating to health and safety in such mines. Each such advi-
sory committee shall include among its members an equal number of
persons qualified by experience and affiliation to present the view-
point of operators of such mines, and of persons similarly qualified to
present the viewpoint of workers in such mines, as well as one or more
representatives of mine inspection or safety agencies of the States.
(b) Members appointed to such a committee from private life shall, Compensation of
while serving on business of the committee, be entitled to receive corn- members.
pensation at rates fixed by the Secretary, but not exceeding $100 per
day, including travel time; and while so serving away from their
homes or regular places of business, they may be paid travel expenses
and per diem in lieu of subsistence at the rates authorized by section 5
of the Administrative Expenses Act of 1946 (5 U.S.C., sec. 73b-2). 60 Stat. 808;
75 Stat. 339,
FINDINGS AND ORDERS 340.
SEC. 8. (a) If, upon any inspection or investigation of a mine which
is subject to this Act, an authorized representative of the Secretary
finds that conditions or practices in such mine are such that a danger
exists which could reasonably be expected to cause death or serious
physical harm immediately or before the imminence of such danger
can be eliminated, such representative shall determine the extent of
the area of such mine throughout which the danger exists, and there-
75-623 0 - 74 - pt. 3 - 16
PAGENO="0274"
956
Pub. Law 89-577 - 4 - September 16, 1966
Rn STAP 77A - -
upon issue an order requiring tl1e operator of such mine to cause all
persons, except the following persons whose presence in such area
is necessary to eliminate the danger described in such order, to be
withdrawn from, and to be debarred from, entering such area:
(1) Any person whose presence in such area is necessary, in the
judgment of the operator of the mine, to eliminate the danger
described in the order; (2) any public official whose official duties
require him to enter such area; or (3) any legal or technical con-
sultant, or any representative of the employees of the mine, who is a
certified person qualified to make mine examinations, or is accompa-
nied by such a person, and whose presence in such area is necessary,
in the judgment of the operator of the mine, for the proper investi-
gation of the conditions described in the order.
(b) If, upon any such inspection or investigation, an authorized
representative finds that there has been a failure to comply with a
mandatory standard which is applicable to such mine, but that such
failure to comply has not created a danger that could reasonably be
expected to cause death or serious physical harm in such mine imme-
diately or before the imminence of such danger can be eliminated, he
shall find what would be a reasonable period of time within which
such violation should be totally abated and thereupon issue a notice
fixing a reasonable time for the abatement of the violation. If, upon
the expiration of such period of time as originally fixed or extended,
the authorized representative finds that such violation has not been
totally abated, and if he also finds that such period of time should not
be further extended, he shall also find the extent of the area which is
affected by such violation. Thereupon, he shall promptly make an
order requiring the operator of such mine to cause all persons in such
area, excepting the following persons w-hose presence in such area is
necessary to abate the violation described in the order, to be with-
drawn from, and to be debarred from, entering such area:
(1) Any person whose iwesence in such area is necessary, in the
judgment of the operator of the mine, to abate the violation described
in the order; (2) any public official whose official duties require him to
enter such area; or (3) any legal or technical consultant, or any repre-
sentative of the employees of the mine, w-ho is a certified person quali-
fied to make mine examinations, or is accompanied by such a person,
and whose presence in such area is necessary, in the judgment of the
operator of the mine, for the proper investigation of the conditions
described in the order.
(c) Findings and o~ders issued pursuant to this section shall con-
tain a detailed descript'ion of the conditions or practices which cause
and constitute a sitfi,ation of imminent danger or a violation of a
mandatory standard, and a description of the area of the mine
throughout which persons must be withdrawn and debarred.
(d) Each finding made and notice or order issued under this section
shall be given promptly to the operator of the mine to which it per-
tains by the person making such finding or order, and all such findings,
orders, and notices shall be in writing, and shall be signed by the
person making them. A notice or order issued pursuant to this sec-
tion may be annulled, canceled, or revised by an authorized repre-
sentative of the Secretary.
(e) If an order is made pursuant to subsection (a) of this section,
and a State inspector did not participate in the inspection on which
such order is based, the duly authorized representative of the Secre-
tary who issued the order shall notify the State mine inspection or
safety agency immediately, but. not later than twenty-four hours after
the issuance of such order, that such order has been issued. Following
such order the operator of the mine may immediately request the State
PAGENO="0275"
957
September 16,1966 - 5 - Pub. Law 89-577 80 STAT 777
mine inspection or safety agency to assign a State inspector to inspect
the mine. The State agency shall then promptly assign a State
inspector to mspedt the mine affected by such order and file an inspec-
tion report with the Secretary and the State agency. The order of
the duly authorized representative of the Secretary shall remain in
effect, but shall immediately be subject to review as provided in this
Act.
REVIEW BY SECRETARY
SEc. 9. (a) An operator notified of an order made pursuant to
section 8(a) may apply to the Secretary for annulment or revision of
such order. Upon receipt of such application the Secretary shall make
a special inspection of the mine affected by such order, or cause three
duly authorized representatives of the Secretary of the Interior, other
than the representative who made such order, tomake such inspection
of such mine and to report thereon to him. Upon making such special
inspection himself, or upon receiving the report of such inspection
made by such representatives, the Secretary shall find whether or not
danger throughout the area of such mine as set out in such crder existed
at the time of making such special inspection. If he finds that such
danger did not then exist throughout such area of such mine, he shall
make an order, consistent with his findings, revising or annulling the
order under review. If he finds that such danger did then exist
throughout such area of such mine, he shall make an order denying
such application.
(b) An operator notified of an order made pursuant to section 8(b)
may apply to the Secretary for annulment or revision of such order.
Upon receipt of such application the Secretary shall make a special
inspection of the mine affected by such order, or cause three duly au-
thorized repr~sentatives of the Secretary of the Interior, other than
the representative who made such order, to make such inspection of
such mine and report thereon to him. Upon making such special
inspection himself, or upon receiving the report of such inspection
made by such representatives, the Secretary shall find whether or not
there was a violation of a mandatory safety standard as described in
such order, at the time of the making of such order. If he finds there
was no such violation, he shall make an order annulling the order
under review. If he finds there was such a violation, he shall also
find whether or not such violation was totally abated at the time of
the making of such special inspection. If he finds that such viola-
tion was totally abated at such time, lie shall make an order annulling
the order under review. If he finds that such violation was not totally
abated at such time, he shall find whether or not the period of time
within which such violation should be totally abated, fixed under sec-
tion 8(b), should be extended. If he finds that such period of time
should be extended, he shall find what a reasonable extension of such
period of time would be. Thereupon he shall find the extent of the
area of such mine which was affected by such violation at the time
such special inspection was made, and then he shall make an order,
consistent with his findings, revising the order under review. If he
finds that such violation was not totally abated at the time of such
special inspection, and that such period of time should not be ex-
tended, he shall find the extent of the area of such mine which was
affected by such violation at the time such special inspection was
made, and he shall then make an order, consistent with his findings,
affirming or revising the order under review.
(c) In view of the urgent need for prompt decision of matters sub-
mitted to the Secretary under this section, all actions which the Secre-
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Pub. Law 89-577 - 6 - September 16, 1966
80 STAT. 778
tary or his representatives are required to take under this section shall
be taken as rapidly as practicable, consistent with adequate considera-
tion of the issues involved.
CREATION OF REVIEW BOARD
Federal Metal SEC. 10. (a) An agency is hereby created to be known as the Federal
and Nonmetallic Metal and Nonmetallic Mine Safety Board of Review, which shall
Mine Safety be composed of five members who shall be appointed by the President,
Board of Review, by and with the advice and consent of the Senate.
Membership, du- (b) The terms of office of members of the Board shall be five years,
ration, except that the terms of office of the members first appointed shall
commence on the effective date of this section and shall expire one at
the end of one year, one at the end of two years, one at the end of three
years, one at the end of four years and one at the end of five years, as
designated by the President at the time of appointment. A member
appointed to fill a vacancy caused by the death, resignation, or re-
mnoval of a member prior to the expiration of the term for which he
was appointed shall he appointed only for the remainder of such
unexpired term. The members of the Board may be removed by the
President for inefficiency, neglect of duty, or malfeasance in office.
Compensation. (c) Each member of the Board shall be compensated at the rate of
$50 for each day of actual service (including each day he is traveling
on official business) and shall, notwithstanding the Travel Expense
63 Stat. 166. Act of 1949, be fully reimbursed for traveling, subsistence, and other
5 USC 835 note, related expenses. The Board, at all times, shall consist of two per-
sons who by reason of previous training and experience may reasonably
he said to represent the viewpoint of metal and nonmetallic mine
operators, two persons who by reason of previous training and experi-
ence may reasonably be said to represent the viewpoint of metal and
nonmetallic mine workers, and one person, who shall be Chairman of
the Board, who shall be a graduate engineer with experience in the
metal and nonmetallic mining industry or shall have had at least
five years' experience as a practical mining engineer in the metal and
nonmetallic mining industry, and who shall not, within one year of
his appointment as a member of the Board, have had a ~ecunmry in-
terest, in, or have been regularly employed or engaged in, the metal
or nonmetallic mining industry, or have regularly represented either
metal or nonmetallic mine operators or workers, or have been in
officer or employee of the Department of the Interior assigned to duty
in the Bureau of Mines.
(d) The principal office of the Board shall be in the District of
Columbia. Whenever the Board deems that the convenience of the
public or of the parties may be promoted, or delay or expense may be
minimized, it may hold hearings or conduct other proceedings at any
other place. The Board shall have an official seal which shall be
judicially noticed and which shall be preserved in the custody of the
secretary of the Board.
Appointment of (e) The Board shall, without regard to the civil service laws,
personnel, etc. appoint and prescribe the duties of a secretary of the Board and such
legal counsel as it deems necessary. Subject to the civil service laws,
the Board shall appoint such other employees as it deems necessary
in exercising its powers and duties. The compensation of all em-
ployees appointed by the Board shall be fixed in accordance with the
~ p. 288. Classification Act of 1949, as amended.
5 USC 107lnote. (f) Three members of the Board shall constitute a quorum, and
official actions of the Board shall be taken only on the affirmative
vote of at least three members; but a special panel composed of one
or more members, upon order of the Board, shall conduct any hearing
provided for in section 11 and submit the transcript of such hearing
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80 STAT. 779
to the entire Board for its action thereon. Every official act of the
Board shall be entered of record, and its hearings and records thereof
shall be open to the public.
(g) The Board shall hear and determine applications filed pursuant Review of ap-
to section 11 for annulment or revision of orders made pursuant to plioation.
section 8 or section 9. The Board shall not make or cause to be made
any inspection of a mine for the purpose of determining any pending
application.
(h) The Board is authorized to make such rules as are necessary for Rules of pro-
the orderly transaction of its proceedings, which shall include require- oeedings.
ment for adequate notice of hearings to all parties.
(i) Any member of the Board may sign and issue subpenas for the Subpena powers.
attendance and testimony of witnesses and the production of relevant
papers, books, and documents, and adminster oaths. Witnesses sum-
moned before the Board shall be paid the same fees and mileage that
are paid witnesses in the courts of the United States.
9) The Board may order testimony to be taken by deposition in any Testimony by
proceeding pending before it, at any stage of such proceeding. Rea- deposition.
sonable notice must first be given in writing by the party or his attorney
proposing to take such deposition to the opposite party or his attorney
of record, which notice shall state the name of the witness and the
time and place of the taking of his deposition. An~", person may be
compelled to appear and depose, and to produce books, papers, or docu-
ments, in the same manner as witnesses may be compelled to appear
and testify and produce like documentary evidence before the Board,
as provided in subsection (i). Witnesses whose depositions are taken
under this subsection, and the persons taking such depositions, shall
be entitled to the same fees as are paid for like services in the courts of
the United States.
(k) In the case of contumacy by, or refusal to obey a subpena served
upon, any person under this section, the Federal district court for
any district in which such person is found or resides or transacts
business, upon application b~ the United States, and after notice to
such person and hearing, shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the Board
or to appear and produce documents before the Board, or both; and
any failure to obey such order of the court may be punished by such
court as a contempt thereof.
(1) The Board shall submit annually to the Congress as soon as Report to
practicable after the beginning of each regular session, a full report Congress.
of its activities during the preceding calendar year. Such report
shall include, either in summary or detai'ed form, information regard-
ing the cases heard by it. and the disposition of each.
REVIEW BY BOARD
SEC. 11. (a) An operator notified of an order made pursuant to
section 8 may apply to the Federal Metal and Nonmetallic Mine
Safety Board of Review for annulment. or revision of such order
without seeking its annulment or revision under section 9. An opera-
tor notified of an order made pursuant to section 9 may apply to the
Board for annulment or revision of such order.
(b) The operator shall be designated as the applicant in such pro-
ceeding, and the application filed by him shall recite the order com-
plained of and other facts sufficient to advise the Board of the nature
of tl1e proceeding. He may allege in such application: that danger
as set out in such order does not exist at the time of the filing of such
application; that violation of a mandatory safety standard, as set out
in such order, has not occurred; that such violation has been totally
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Pub. Law 89-577 - 8 - September 16, 1966
80 STAT. 780
or partially abated; that the period of time within which such violation
should be be totally abated, as fixed in the findings upon which such
order was based, was not reasonable; or that the area of the mine
described in such order as the area affected by the violation referred to
in such order is not so affected at the time of the filing of such applica-
tion. The Secretary shall be the respondent in such proceeding, and
the applicant shail send a co~iy of such application by registered mail
or by certified mail to the Secretary at Washington, District of Colum-
bia.
(c) Immediately upon the filing of such an application the Board
shall fix the time for a prompt hearing thereof.
Temporary re- (d) Pending such hearing the applicant may file with the Board a
lief pending written request that the Board grant such temporary relief from such
hearing, order as the Board may deem just and proper. Such temporary re-
lief may be granted by the Board only after a hearing by the Board at
which both the applicant and the respondent were afforded an oppor-
tunity to be heard, and only if respondent was given ample notice of
the filing of applicant's request and of the time and place of the hear-
ing thereon as fixed by the Board.
(e) The Board shall not be bound by any previous findings of fact
by the respondent. Evidence relating to the making of the order
complained of and relating to the questions raised by the allegations
of the pleadings or other questions pertinent in the proceeding may
1)8 offered by both parties to the proceeding. If the respondent claims
that imminent danger or violation of a mandatory safety standard,
as set out in such order, existed at the time of the filing of the applica-
tion, the burden of proving the then existence of such danger or
violation shall be upon the respondent, and the respondent shall present
his evidence first to prove the then existence of such danger or viola-
tion. Following presentation of respondent's evidence the applicant
may present his evidence, and thereupon the respondent may present
evidence to rebut the applicant's evidence.
(f) If the proceeding is one in which an operator seeks annulment
or revision of an order made pursuant to section 8(a) the Board, upon
conclusion of the hearing, shall find whether or not danger throughout
the area of such mine as set out in such order existed at the time of
the filing of tbe operator's application. If the Board finds that such
danger did not then exist throughout such area of such mine, the
Board shall make an order, consistent with its findings, revising or
annulling the order under review. If the Board finds that such
danger did then exist throughout such area of such mine, the Board
shall make an order denying such application.
(g) If the proceeding is one in which an operator seeks annulment
or revision of an order made pursuant to section 8(b), the Board upon
conclusion of the hearing shall find whether or not there was a viola-
tion of a mandatory safety standard as described in such order, at the
time of the making of such order. If the Board finds there was no
such violation, the Board shall make an order annulling the order
under review. If the Board finds there was such a violation, the
Board shall also find whether or not such violation was totally abated
at the time of the filing of the operator's application. If the Board
finds that such violation was totally abated at such time, the Board
shall make an order annulling the order under review. If the Board
finds that such violation was not totally abated at such time, the Board
shall find whether or not the period of time w-ithin which such viola-
tion should be totally abated fixed under section 8(b) or section 9(b)
should be extended. If the Board finds that such period of time should
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September 16, 1966 - 9 - Pub. Law 89-577 80 STAT. 781
be extended, the Board shall also find what a reasonable extension of
time should be, and shall immediately also find the extent of the area
of such mine which was affected by such violation at the time of the
filing of such application and the Board shall theii make an order
consistent with its findings, revising the order under review. If the
Board finds that such violation was not totally abated at the time of
the filing of the operator's application and that such period of time
should not be extended, the Board shall find the extent of the area of
such mine which was affected by such violation at such time, and shall
make an order, consistent with its findings, affirming or revising the
order under review.
(h) Each finding and order made by the Board shall be in writing.
It shall show the date on which it is made, and shall bear the signatures
of the members of the Board who concur therein. Upon making a
finding and order the Board shall cause a true copy thereof to be sent
by registered mail or by certified mail to all parties or their attorneys
of record. The Board shall cause each such finding and order to be
entered on its official record, together with any written opinion pre-
pared by any members in support of, or dissenting from, any such
finding or order.
(i) In view of the urgent need for prompt decision of matters
submitted to the Board under this section, all action which the Board
is required to take under this section shall be taken as rapidly as prac-
ticable, consistent with adequate consideration of the issues involved.
JUDICIAL REVIEW
SEC. 12. (a) Any final order issued by the Board under section 11
shall be subject to judicial review by the United States court of appeals
for the circuit in which the mine affected is located, upon the filing in
such court of a notice of appeal by the Secretary or the operator ag-
grieved by such final order within thirty days from the date of the
making of such final order.
(b) The party making such appeal shall forthwith send a copy of
such notice of appeal, by registered mail or by certified mail, to the
other party and to the Board. Upon receipt of such copy of a notice
of appeal the Board shall promptly certify and file in such court a
complete transcript of the record upon which the order complained of
was made. The costs of such transcript shall be paid by the party
making the appeal.
(c) The court shall hear such appeal on the record made before the
Board, and shall permit argument, oral or written or both, by both
parties. The court shall permit such pleadings, in additions to the
pleadings before the Board, as it deems to be required or as provided
for in the Rules of Civil Procedure governing appeals in such court. 28 USC app.
(d) Upon such conditions as may be required and to the extent Final order ef-
necessary to prevent irreparable injury, the United States court of fective date;
appeals may, after due notice to and hearing of the parties to the ap- postponement.
peal, issue all necessary and appropriate process to postpone the ef-
fective date of the final order of the Board or to grant such other re-
lief as may be appropriate pending final determination of the appeal.
(e) The United States court of appeals may affirm, annul, or revise
the final order of the Board, or it may remand the proceeding to the
Board for such further action as it directs. The findings of the Board
as to facts, if supported by substantial evidence on the record consid-
ered as a whole, shall be conclusive.
(f) The decision of a United States court of appeals on an appeal
from the Board shall be final, subject only to review by the Supreme
Court as provided in section 1254 of title 28 of the United States Code. 62 Stat. 928.
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80 STAT. 782 Pub. Law 89-577 - 10 - September 16, 1966
MANDATORY REPORTING
SEc. 13. The Secretary shall require operators of mines which are
subject to this Act to submit, at least annually and at such other times
as he deems necessary, and in such form as he may prescribe reports
of accidents, injuries, and occupational diseases, and related data and
the Secretary shall compile, analyze, and publish either in summary
or detailed form, the information obtained; and all information re-
ports, orders, or findings, obtained or issued under this Act may be
published and released to aiiy interested person, and shall be made
available for public inspection.
PENALTIES
SEc. 14. (a) Whenever an operator (1) violates or fails or refuses to
comply with any order of withdrawal and debarment issued under
section 8 or section 9 o:f this Act, or (2) interferes with, hinders, or
delays the Secretary, or his duly authorized representative, in carrying
out his duties under this Act, or (3) refuses to admit an authorized
representative of the Secretary to any mine which is subject to this
Act, or (4) refuses to permit the inspection or investigation of any
mine which is subject to this Act, or of an accident, injury, or occupa-
tional disease occurring in or connected with such a mine or (5) being
subject to the provisions of section 13 of this Act, refuses to furnish any
information or report requested by the Secretary, a civil action for
preventive relief, inc1udin~ an application for a permanent or tem-
porary injunction, restraining order, or other order, may be instituted
by the Secretary in the district court of the United States for the
district in which the mine in question is located or in which the mine
operator has its principal office.
(b) Whoever violates or fails or refuses to comply with an order of
withdrawal and debarment issued (1) under subsection (a) of section
8 or (2) under subsection (b) of section 8 if the failure to comply with
an order of abatement. has created a danger that could cause death or
serious physical harm in such mine immediately or before the immi-
nence of such danger can be eliminated, shall upon conviction thereof
be punished for each such offense by a fine of not less than $100, or
more than $3,000, or by imprisonment not to exceed sixty days, or both.
In any instance in which such offense is committed by a corporation,
the officer or authorized representative of such corporation who know-
ingly permits such offense to be committed shall, upon conviction, be
subject to the same fine or imprisonment, or both.
EDUCATION AND TRAINING
SEC. 15. The Secretary shall develop expanded programs for the
education and training of employers and employees in the recognition,
avoidance, and prevention of accidents or unsafe or unhealthful work-
ing conditions in mines which are subject to this Act.
STATE PLANS
SEC. 16. (a) In order to promote sound and effective coordination
in Federal and State activities within the field covered by this Act,
the Secretary shall cooperate with the official mine inspection or safety
agencies of the several States.
(b) Any State which, at any time, desires to develop and enforce
health and safety standards in mines located in the State which are
subject to this Act shall submit, through a State mine inspection or
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September 16, 1966 - 11 - Pub. Law 89-577 80 STAT, 783
safety agency, a State plan for the development of such standards and
their enforcement.
(c) The Secretary shall approve the plan submitted by a State
~inder subsection (b), or any modification thereof, whenever the State
gives evidence satisfactory to the Secretary that under such plan-
(1) the State agency submitting such plan is the sole agency
responsible for administering the plan throughout the State and
contains, satisfactory evidence that such agency will have the
authority to carry out the plan: Frock/ed, That the Secretary
may, upon request of the Governor or other appropriate executive
or legislative authority of the State responsible for determining
or revising the organizational structure of State government,
waive the single State agency provision hereof and approve
another State administrative structure or arrangement if the Sec-
retary determines that the objectives of this Act will not be
endangered by the use of such other State Structure or arrange-
ment,
(2) such agency has adequate legal authority to enforce exist-
ing health and safety standards for the purpose of the protection
of life, the promotion of health and safety, and the prevention
of accidents in mines in the State that are subject to this Act,
which are, in his judgment, substantially as effective for such
purposes as the mandatory standards designated under section
6(b) and which provide for inspection at. least annually of all
such mines, other than quarries and sand and gravel pits,
(3) the agency has adequate qualified personnel necessary for
the enforcement of the plan,
(4) thiState will devote adequate funds to the administration
and enforcement of such standards,
(5) reasonable safeguards exist against loss of life or property
arising from mines which are closed or abandoned after the
effective date of this Act, and
(6) the agency shall make such reports to the Secretary, in such State agency
form and containing such information, as the Secretary shall reports to
from time to time require. Interior Sec-
(d) The Secretary shall, on the basis of reports submitted by the retary.
State agency and his own inspection of mines, make a continuing
evaluation of the manner in which each State having a plan approved
under this section is carrying out such plan. Whenever the Secretary
finds, after affording due notice and opportunity for a hearing, that in
the administration of the State plan there is a failure to comply sub-
stantially with any provision of the State plan (or any assurance
contained therein), he, shall notify the State agency of his withdrawal
of approval of such plan and upon receipt of such notice such plan
shall cease to be in effect.
(e) The provisions of section 8(b) and 9(b) of this Act shall not be
applicable in any State in which there is in effect a State plan approved
under subsection (c).
ADMINISTRATIVE PROVISIONS
SEC. 17. The Secretary shall 1)ro\-ide that. the major responsibility
for administering the provisions of this Act shall be vested in tl~e
Bureau of Mines of the Department of the Interior which has the
major responsibility for carrying out the Federal Coal Mine Safety
Act. The Secretary acting through the Bureau, shall have authority 55 Stat. 177.
to appoint, subject to the civil service laws, such officers and employees 30 USC 451
as he may deem requisite for the administration of this Act; and to note.
prescribe powers, duties, and responsibilities of all officers and employ-
ees engaged in the administration of this Act: Provided, however,
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Pub. Law 89-577 - 12 - September 16, 1966
80 STAT. 784
Mine inspectors, That, to the maximum extent feasible, in the selection of persons for
qualifications, 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
their previous practical experience in the State, district, or region, and
in the particular type of mining operation where such inspections ase
to be made.
ExcLusIoN }`IIOM ADMINISTRATIVE PROCEDLRE Acr
60 Stat. 237. SEC. 18. The Administrative Procedure Act shall not apply to the
5 USC 1001 note, making of any finding, order, or notice pursuant to this Act, or to any
proceeding for the annulment or revision of any such finding, osder, or
notice.
EFFECT ON 5TATE LAWS
SEC. 19. (a) No State or territorial law in effect U1)Ofl the effective
date of this Act or which may become effective thereafter, shall 1)e
superseded by any provision of this Act, except insofar as such State
or territorial law is in conflict with this Act, or with orders issued
pursuant to this Act.
(b) Provisions in any State or territorial law in effect upon the
effective date of this Act, or which may become effective thereafter,
which provide for greater safety of persons in a mine as defined in this
Act, than do provisions of this Act, which relate to the same phase of
such operations, shall not be construed or held to be in conflict with
this Act. Provisions in any State or territorial law in effect upon the
effective date of this Act, or which may become effective thereafter,
which provide for the safety of persons in a mine as defined in this
Act concerning which no provision is contained in this Act, shall not
be construed or held to be superseded by this Act.
(c) Nothing in this Act shall be construed or held to supersede or in
any manner affect the workmen's compensation laws of any State or
territory, or to enlarge or diminish or affect in any other manner the
common law or statutory rights, duties, or liabilities of employers and
employees under state or territorial laws in respect of injuries, occu-
pational or other diseases, or death of employees arising out of, or in
the course of, employment.
REPORT OF SECRETARY
SEC. 20. The Secretary shall submit annually to the Congress, as
soon as practicable after the beginning of each regular session, a full
report of the administration of his functions under this Act during the
preceding calendar year. Such report shall include, either in sum-
mary or detailed form, the information obtained by him under this
Act, together with such findings and comments thereon and such rec-
ommendations for legislative act.ion as he may deem proper.
ATJTIIOI{IZATION OF Al'PROPRTATlONS
SEC. 21. There are authorized to be appropriated, out of any moneys
in the Treasury not otherwise appropriated, such sums as may be
necessary to carry out the provisions of this Act.
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September 16, 1966 - 13 - Pub. Law 89- 577
80 STAT. 785
EFFECTIVE DATE OF ACT
SEC. 22. This Act shall become effective on the date of its enactment,
except that sections 8 and 9, and subsection (b) and paragraph (1) of
subsection (a) of section 14 shall become effective one year after the
date of publication of notice in the Federal Register of the designation
of mandatory standards as provided for in section 6(b) of this Act.
Approved September 16, 1966, 12:20 p.m.
LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 606 (Comm. on Education & labor) and No. 1921
(Comm. of Conference).
SENATE REPORT No. 1296 (Coma, on Labor & Public Welfare).
CONGRESSIONAL RECORD:
Vol. 111 (1965): Sept. 2, considered and passed House.
Vol. 112 (1966): June 23, considered and passed Senate,
amended.
Aug. 31, House and Senate agreed to con-
ference report.
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FEDERAL EMPLOYEES' COMPENSATION ACT
(5 U.S.C. 8101 et seq.)
Summary and Description
The Federal Employees' Compensation Act provides workmen's
compensation coverage to civilian employees of the United States for
disability or death due to personal injury sustained while in the per-
formance of duty or to employment related disease.
PERSONS AND EMPLOYMENTS COVERED
The law covers three million individuals, including civilian em-
ployees of the United States Government; the District of Columbia
Government; and such diverse groups as Peace Corps volunteers, en-
rollees in the Job Corps and the Neighborhood Youth Corps, Volun-
teers in Service to America (VISTA); and State and local law en-
forcement officers killed or injured under circumstances involving a
crime against the United States. The Act also provides for the pay-
ment of benefits to dependents if the injury or disease causes the em-
ployee's death.
INJURIES AND DISEASES COVERED
Workers' compensation benefits are provided for accidental in-
juries sustained by employees while in the performance of duty and
occupational disease proximately caused by the employment. Benefits
cannot be paid if the injury or disease is caused by the willful miscon-
duct of the employee or by the employee's intention to bring about the
injury or death of himself or another, or if intoxication is the proxi-
mate cause of the injury or death.
AMOtNT OF BENEFITS
Compensation for total disability and death generally is payable at
the rate of two-thirds of the employee's salary if he has no dependent;
or three-fourths of his salary if he has one or more dependents. The
minimum rate of compensation for total disability is three-fourths of
the monthly pay of the lowest rate of basic pay for grade GS-2 of the
General Schedule of the Classification Act of 1949, as amended, or
the employee's full wages, whichever is less. The maximum compensa-
tion payable is three-fourths of the monthly pay of the highest rate of
basic pay provided for grade GS-1s of the General Schedule.
TEMPORARY TOTAL DISABILITY
Compensation for loss of wages is payable at the rate of two-thirds
or three-fourths of the employee's salary after a 3-day waiting period,
(967)
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unless there is permanent injury or where the disability causing wage
loss exceeds 21 days. If the disability lasts more than 21 days, com-
pensation is paid for the waiting.period.
PERMANENT PARTIAL DISABILITY
The law provides both scheduled benefits, and payments for non-
scheduled disabilities based upon loss in wage-earning capacity for
permanent effects of an. injury. Scheduled benefits are awards for
permanent impairment of certain members or functions of the body
(such as loss or loss of use, either total or partial, of an eye, arm,
hearing, etc.); or for serious disfigurement of the face, head or neck
if of a character likely to handicap a person in securing or maintaining
employment. Benefits for loss in wage-earning capacity due to an
injury also may be paid after the scheduled award period has termi-
nated. Compensation for loss in wage-earning capacity may be pay-
able if the employee is unable to resume his regular work because of
injury-related disability, and is paid on the basis of the difference
between the employee's capacity to earn wages and the wages of the job
he held when injured.
PERMANENT TOTAL DISABILITY
Loss, or loss of use, of both hands, or both arms, or both feet, or
both legs, or both eyes or the sight thereof, constitutes, prima facie,
permanent total disability. Compensation for permanent total dis-
ability is payable for life on the basis of two-thirds or three-fourths of
the employee's salary.
DEATH
Persons eligible for death compensation include a widow or wholly
dependent widower, children under 18 years of age (or if over 18 the
child* is' a student or incapable of self-support), and dependent par-
ents, brothers, sisters, grandparents, and grandchildren. If there is no
child eligible for benefits, the widow or wholly dependent widower's
monthly compensation is 45 percent of the monthly pay of the deceased
employee. If there is a child or children eligible for benefits, the widow
or widower is entitled to 40 pe:rcent of the pay and each child is entitled
to 15 percent. If children are the sole survivors, 35 percent is paid for
one child and 15 percent additional for each additional child, shared
equally. In no case, however, may the total monthly compensation paid
be more than 75 percent of the employee's monthly pay, or 75 percent
of the highest rate of monthly pay provided for grade GS-15 of the
General Schedule. . .
Compensation to an employee's survivors terminates upon their
death or marriage. Upon remarriage a widow will receive a lump sum
equal to 24 times her monthly compensation. .
Burial expenses not to exceed $800 are payable in an individual case.
Transportation of the body to its former residence in the United
States is provided where an employee' dies away from his home station.
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969
MEDICAL CARE
All necessary medical care is provided for the effects of an injury,
including medical, surgical and hospital services, appliances, and sup-
plies prescribed or recommended by a qualified physician. Transporta-
tion expense is authorized if travel is necessary to secure treatment.
Treatment must be obtained from United States medical officers and
hospitals, if practicable. If these are not available, physicians desig-
nated by the Office of Workers' Cooperation Programs are to be used.
Other qualified physicians may be used only if TJnited States medical
officers and hospitals or designated physicians are not available or if
an emergency exists. The term "physician" includes surgeons and
osteopathic practitioners, but not chiropractors, chiropodists, etc. Au-
thorization for medical care must first be obtained from an employee's
employing establishment or the Office before treatment can be ob-
tained at Office expense.
VOCATIONAL REHABILITATION
The Office may direct a permanently disabled individual whose dis-
ability is compensable under this Act to undergo vocational rehabilita-
tion, where necessary, and may provide for a maintenance allowance
not to exceed $100 per month. Insofar as practicable, the Office uses the
services or facilities of State agencies. and corresponding agencies
which cooperate in carrying out the purposes of the Vocational Reha-
bilitation Act, as amended.
COST OF LIVING INCREASES
In general, if benefits have been paid for more than a year, th~ law
provides an automatic increase in benefit payments on the first day of
the third month after any increase in the Consumer Price Index of at
least 3 percent for three consecutive months over the price index for
the most recent base month. The term "price index" means the Con-
sumer Price Index (all items-United States city average) published
by the U.S. Bureau of Labor Statistics. Each new "base month" iS
determined by subsequent adjustments.
THIRD PARTY SETTLEMENTS
In instances where an employee's injury or death in the perform-
ance of duty is caused under circumstances creating a legal liability on
some person other than the United States to pay damages, the cost
of compensation and other benefits paid by the Office must be refunded
from any settlement obtained. The Office will assist in obtaining a
settlement, and the law guarantees that a certain proportion of the
settlement (after any attorney fees and costs are first deducted) may
be retained even when the cost of compensation and other benefits
exceeds the amount of the settlement.
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97t~
ADMINISTRATION
Responsibility for administration of this law is delegated to the
Office of Workers' Compensation Programs of the U.S. Department of
Labor, with headquarters at Washington, D.C. 20211. The Office's dis-
trict offices adjudicate the claims arising within the areas of their re-
spective jurisdictions. The Director of the Office is responsible for
final decisiOns in respect to claims filed under the Act.
HEARING, REVIEW, AND APPEAL RIGHTS
If an employee or his survivors disagree with a final determination
of the Office, a hearing may be requested where an opportunity will
be afforded to present evidence in further support of the claim. After
the hearing the Office will issue a new decision. There is also a pro-
vision for additional review by the Branch of Hearings and Review
in the Office headquarters office. A clajmant has the further right
to appeal a Office decision to the Employees' Compensation Appeals
Board, located in Washington, D.C.
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971
FEDERAL EM~L~YEES' CO E~SATIIO~ ACT
(5 USC 8101 et seq.)
A~D RELATED ~ROV~SIIO~S
THROU~II~II APRiL ~, ~
U.S. DEPARTMENT OF LABOR
Bureau of Employees' Compensation
1969
Pam. BEC-700
75~623 0 - 74 - pt. 3 19
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972
FOREWORD
In the recodification of Title 5 of the United States Code, which was
enacted into law in 1966, the provisions of the Federal Employees'
Compensation Act as previously enacted and amended were revised,
rearranged, and renumbered. The revised provisions, as contained in
Chapter 81 of Title 5 of the Code, with amendments through April 19,
1968, are reproduced in this pamphlet, together with pertinent portions
of the text of certain prior statutes amending and extending provisions
of the Federal Employees' Compensation Act. In this pamphlet, which
replaces the publication entitled Federal Employees' Compensation Act
As Amended to September 13, 1960, issued by the Department of Labor
in 1962, the recodified provisions are annotated for the convenience of
the user to show, in footnotes, the basic statutory source of each pro-
vision and to provide a cross-reference, in the margin, to the section
number of the corresponding provision in the basic Federal Employees'
Compensation Act, where such sections are applicable.
The statutory provisions contained in this pamphlet were compiled
and annotated in the Division of Interpretations and Opinions, Office
of the Solicitor of Labor, by Claire R. Strine, Attorney, under the general
supervision of Vahan Moushegian, Counsel for Labor Standards.
John M. Ekeberg,
Director, BEC,
August 1969
PAGENO="0291"
973
TABLE OF CONTENTS
page
I. Cross Index Table . v
II. 5 USC 8101-8150 ~. 2
III. 5 USC 8191-8193 (Law Enforcement Officers not Employed by the U.S.)... 35
IV. Selected Portions of the Federal Employees' Compensation Act Amendments
of 1966 37
V. Selected Portions of the Federal Employees' Compensation Act Amend-
ments of 1960 38
VI. Selected Portions of the Federal Employees' Compensation Act Amend-
ments of 1949 40
VII. Extensions of the Act of September 7, 1916, as amended 43
VIII. Extensions of the Act of September 7, 1916, with Limited Benefit Pro-
visions 55
IX. Miscellaneous Provisions and References 59
ill
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974
Subchapter I
CROSS INDEX TABLE
FECA
Section No. 1 5 USC 8102
Section No. 2 5 USC 8117
Section No. 3 5 USC 8105
Section No. 4 5 USC 8106
Section No. 5 5 USC 8107, 8108, 8109
Section No. 6 5 USC 8110,8111,8112,8113
Section No.7 5 USC 8116
Section No. 8 5 USC 8118
Section No. 9 5 USC 8103, 8104
Section No. 10 5 USC 8133
Section No. 10 (H) 5 USC 8101
Section No. 10 (L) 18 USC 1921
Section No. 11 5 USC 8134
Section No. 12 5 USC 8114
Section No. 13 5 USC 8115
Section No. 14 5 USC 8135
Sections No. 15, 16, 17 5 USC 8119
Sections No. 18, 19 5 USC 8121
Section No. 20 5 USC 8122
Sections No. 21, 22 5 USC 8123
Section No. 23 (a) 5 USC 8123 (c)
Section No. 23 (b) 5 USC 8127 & 18 USC 292
Section No. 23 (c) 5 USC 8125
Section No. 24 (a) 5 USC 8120 (1) (2)
Section No. 24 (b) 18 USC 1922
Section No. 25 5 USC 8130
Section No. 26 5 USC 8131 (a) (b) (c)
Section No. 27 5 USC 8132
Section No. 28 5 USC 8145 (2)
Section No. 28 (a) 5 USC 8120 (3)
Section No. 29 5 USC 8126
Section No. 30 5 USC 8145 (1)
Section No. 31 [Repealed]'
Section No. 32 5 USC 8149
Section No. 33(a) 5 USC 8148
Section No. 33(b) (c) 5 USC 7902
Section No. 34 [Executed]2
Section No. 35 5 USC 8147
Section No. 36 5 USC 8124
Section No. 37 5 USC 8128
Section No. 38 5 USC 8129
Section No. 39 18 USC 1920
Section No. 40 5 USC 8101
Section No. 41 5 USC 8131 (d)
Section No. 42 5 USC, 8136, 8137, 8138 (a)
Maritime Rights 5 USC 8150 (a)
Employees of D.C. Government 5 USC 8139
Student Nurses, Apprentices, etc 5 USC 8144
Employees of Midshipmen's Stores, etc., at U.S.
Naval Academy 5 USC 2105 (b)
Peace Corps Volunteers 5 USC 8142
ROTC of Army, Navy and Air Force 5 USC 8140
Civil Air Patrol 5 USC 8141
Establishment of ECAB 5 USC 8149
Transfer of Functions of ECAB to
the Department of Labor 5 USC 8149
Reemployment Rights 5 USC 3315a
`Act of September 12, 1950, 64 Stat. 843. Section related to annual estimates of necessary appropria-
tions to be submitted to the Secretary of the Treasury.
`Section related to a $50,000 salaries and expense appropriation authorization for the fiscal year
ending June 30, 1917.
V
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975
UNUEI) STATES CODE, TITLE 5
CHAPTER 81.-
COMPENSATION FOR WORK INJURIES
Subchapter I Generally
Sxc. 8101. Definitions.
8102. Compensation for disability or death of employee.
8103. Medical services and initial medical and other benefits.
8104. Vocational rehabilitation.
8105. Total disability.
8106. Partial disability.
8107. Compensation schedule.
8108. Reduction of compensation for subsequent injury to same member.
8109. Beneficiaries of awards unpaid at death; order of precedence.
8110. Augmented compensation for dependents.
8111. Additional compensation for services of attendants or vocational reha-
bilitation.
8112. Maximum and minimum monthly payments.
8113. Increase or decrease of basic compensation.
8114. Computation of pay.
8115. Determination of wage-earning capacity.
8116. Limitations on right to receive compensation.
8117. Time of accrual of right.
8118. Election to use annual or sick leave.
8119. Notice of injury; failure to give.
8120. Report of injury.
8121. Claim.
8122. Time for making claim.
8123. Physical examinations.
8124. Findings and award; hearings.
8125. Misbehavior at proceedings.
8126. Subpoenas; oaths; examination of witnesses.
8127. Representation; attorneys' fees.
8128. Review of award.
8129. Recovery of overpayments.
8130. Assignment of claim.
8131. Subrogation of the United States.
8132. Adjustment after recovery from a third person.
8133. Compensation in case of death.
8134. Funeral expenses; transportation of body.
8135. Lump-sum payment.
8136. Initial payments outside the United States.
8137. Compensation for noncitizens and nonresidents.
8138. Minimum limit modification for noncitizens and aliens.
8139. Employees of the District of Columbia.
8140. Members of the Reserve Officers' Training Corps.
8141. Civil Air Patrol volunteers.
8142. Peace Corps volunteers.
8143. Job Corps enrollees; volunteers in service to America.
8143a. Members of the National Teacher Corps.
8144. Student-employees.
8145. Administration.
8146. Administration for the Canal Zone and the Alaska Railroad.
8146a. Cost-of-living adjustment of compensation.
8147. Employees' Compensation Fund.
8148. [Repealed.]
8149. Regulations.
8150. Effect on other statutes.
1
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976
Subchapter II
5 USC 8101-8150
SEC. 8101. DEFINITIONS
For the purpose of this subchapter-
(1) "employee" means-
(A) a civil officer or employee in any branch of 40(b) (1)
the Government of the United States, including
an officer or employee of an instrumentality
wholly owned by the United States;'
(B) an individual rendering personal service 40(b) (2)
to the United States similar to the service of a
civil officer or employee of the United States,
without pay or for nominal pay, when a statute
authorizes the acceptance or use of the service,
or authorizes payment of travel or other expenses
of the individual; 2
(C) an individual, other than an independent 40(b) (3)
contractor or an individual employed by~ an in-
dependent contractor, employed on the Menom-
inee Indian Reservation in Wisconsin in opera-
tions conducted under a statute relating to tribal
timber and logging operations on that reser-
vation;
(D) an individual employed by the government
of the District of Columbia; and
(E) an individual appointed to a position on the
office staff of a former President under section
1 (b) of the Act of August 25, 1958 (72 Stat. 838);'
but does not include-
(i) a commissioned officer of the Regular Corps 40(b) (1)
of the Public Health Service; 6
(ii) a commissioned officer of the Reserve Corps 40(b) (1)
of the Public Health Service on active duty;
(iii) a commissioned officer of the Environ- 40(b) (1)
mental Science Services Administration; 8 or
(iv) a member of the Metropolitan Police or
the Fire Department of the District of Columbia
who is pensioned or pensionable under sections
521-535 of title 4, District of Columbia Code;
(2) "physician" includes surgeons and osteopathic 40(d)
practitioners within the scope of their practice as de-
fined by State law; `°
`Act of Sept. 7. 1916, 39 5tat. 750; Act of June 5, 1924, 43 Stat. 389; Act of July 1, 1944, 58 5tat. 712;
Act of Oct. 14, 1949, 63 Stat. 860.
`Act of Oct. 14, 1949, 63 Stat. 860.
`Act of April 11, 1940, 54 Stat. 105; Act of July 1, 1944, 58 Stat. 712; Act of Oct. 14, 1949, 83 Stat. 861.
`Act of July 11, 1919, 41 Stat. 104.
`This referred to section provides workn~en's Compensation benefits, among other things.
`These were formerly included: Act of July 1, 1944, 58 Stat. 712; Act of Oct. 14, 1949, 63 5tat. 860.
Excluded by Act of Aug. 1, 1956, 70 Stat. 833.
`See note 6 supra.
`Act of Aug. 1, 1956. 70 Stat. 883. Changed from Coast and Geodetic Survey by Act of 5ept. 11,
1967, 81 Stat. 196.
`See note 4 supra.
"Act of Sept. 7, 1916, 39 Stat. 750; Act of June 5, 1924, 43 Stat. 389; Act of May 31, 1938, 52 Stat. 586.
*References in the margins are to sections in the Pamphlet Federal Employees' Compensation Act A8
Amended to September 13, 1960-published by the Bureau of Employees' Compensation in 1962.
2
PAGENO="0295"
(3) "medical, surgical, and hospital services and
supplies" includes services and supplies by osteopathic
practitioners and hospitals within the scope of their
practice as defined by State law; 11
(4) "monthly pay" means the monthly pay at the
time of injury, or the monthly pay at the time dis-
ability begins, or the monthly pay at the time com-
pensable disability recurs, if the recurrence begins more
than 6 months after the injured employee resumes reg-
ular full-time employment with the United States,
whichever is greater, except when otherwise determined
under section 8113 of this title with respect to any
period; 12
(5) "injury" includes, in addition to injury by acci-
dent, a disease proximately caused by the employ-
ment; 1 3
(6) "widow" means the wife living with or depend-
ent for support on the decedent at the time of his death,
or living apart for reasonable cause or because of his
desertion; 1 4
(7) "parent" includes stepparents and parents by
adoption; 15
(8) "brother" and "sister" mean one who at the time
of the death of the employee is under 18 years of age
or over that age and incapable of self-support, and in-
clude stepbrothers and stepsisters, half brothers and
half sisters, and brothers and sisters by adoption, but
do not include married brothers or married sisters; 1 6
(9) "child" means one who at the time of the death
of the employee is under 18 years of age or over that
age and incapable of self-support, and includes step-
children, adopted children, and posthumous children,
but does not include married children; 17
(10) "grandchild" means one who at the time of the
death of the employee is under 18 years of age or over
that age and incapable of self-support; 1 8
(11) "widower" means one who, because of physical
or mental disability, was wholly dependent for support
on the employee at the time of her death. 18
(12) "compensation" includes the money allowance
payable to an employee or his dependents and any
other benefits paid for from the Employees' Compensa-
tion Fund, but this does not in any way reduce the
amount of the monthly compensation payable for
disability or death; 2
(13) "war-risk hazard" means a hazard arising dur-
ing a war in which the United States is engaged;
977
40 (6)
40 (f)
40 (g)
10 (H)
10(H)
10(H)
10 (H)
10(H)
10(B)
40(h)
40(j)
``Act of May 31, 1938, 52 5tat. 588.
"Act of Sept. 7, 1916, 39 5tat. 750; Act of June 5, 1924, 43 5tat. 389; Act of Oct. 14, 1949, 63 Stat.
861; Act of Sept. 13, 1960, 74 Stat. 908, 909.
`~Act of June 5, 1924, 43 Stat. 389.
14Act of Sept. 7, 1916, 39 Stat. 745; Act of Feb. 12, 1927, 44 Stat. 1087.
"See note 14 8upra.
`65ee note 14 supra.
"See note 14 supra.
`85ee note 14 tupra.
"Act of Sept. 7, 1916, 39 5tat. 745.
"See note 13 supra.
3
PAGENO="0296"
978
during an armed conflict in which the United States
is engaged, whether or not war has been delcared; or
during a war or armed conflict between military
forces of any origin, occurring in the country in which
an individual to whom this subchapter applies is
serving; from-
(A) the discharge of a missile, including liquids 40(j) (1)
and gas, or the use of a weapon, explosive, or
other noxious thing by a hostile force or individual
or in combating an attack or an imagined attack
by a hostile force or individual;
(B) action of a hostile force or individual, in- 40 (j) (2)
eluding rebellion or insurrection against the
United States or any of its allies;
(C) the discharge or exp]osion of munitions 40(j) (3)
intended for use in connection with a war or
armed conflict with a hostile force or individual;
(D) the collision of vessels on convoy or the 40 (j) (4)
operation of vessels or aircraft without running
lights or without other customary peacetime aids
to navigation; or
(E) the operation of vessels or aircraft in a 40 Ci) (5)
zone of hostilities or engaged in war activities; 21
(14) "hostile force or individual" means a nation, 40 (k)
a subject of a foreign nation, or an individual serving
a foreign nation-
(A) engaged in a war against the United States 40(k) (1)
or any of its allies;
(B) engaged in armed conflict, whether or not 40(k) (2)
war has been declared, against the United States or
any of its allies; or
(C) engaged in a war or armed conflict between 40(k) (3)
military forces of any origin in a country in which
an individual to whom this subchapter applies is
serving; 22
(15) "allies" means any nation with which the 40 (1)
United States is engaged in a common military effort
or with which the United States has entered into a
common defensive military alliance; 2 3
(16) "war activities" includes activities directly re- 40 (m)
lating to military operations; 2 4
(17) "student" means an individual under 23 years
of age who has not completed 4 years of education
beyond the high school level and who is regularly pur-
suing a full-time course of study or training at an in-
stitution which is-
(A) a school or college or university operated
or directly supported by the United States, or
by a State or local government or political sub-
division thereof;
(B) a school or college or university which has
been accredited by a State or by a State-rec-
2 `Act of Aug. 8, 1958, 72 Stat. 539.
225ee note 21 aupra.
2 2See note 21 supra.
2'See note 21 eupra.
4
PAGENO="0297"
979
ognized or nationally recognized accrediting
agency or body;
(C) a school or college or university not so ac-
credited but whose credits are accepted, on trans-
fer, by at least three institutions which are so
accredited, for credit on the same basis as if
transferred from an institution so accredited; or
(D) an additional type of educational train-
ing institution as defined by the Secretary of
Labor.
Such an individual is deemed not to have ceased to be
a student during an interim between school years if
the interim is not more than 4 months and if he shows
to the satisfaction of the Secretary that he has a bona
fide intention of continuing to pursue a full-time
course of study or training during the semester or
other enrollment period immediately alter the in-
terim or during periods of reasonable duration during
which, in the judgment of the Secretary, he is pre-
vented by factors beyond his control from pursuing
his education. A student whose 23rd birthday occurs
during a semester or other enrollment period is deemed
a student until the end of the semester or other en-
rollment period; 2 5
(18) "price index" means the Consumer Price Index
(all items-United States city average) published
monthly by the Bureau of Labor 26 and
(19) "base month" means the month of July 1966 and
each later month which is used as a basis for calculating
an increase under section 8146a of this title. 2 7
SEC. 8102. COMPENsATION FOR DISABILITY OR DEATH OF
1 (a) EMPLOYEE
(a) The United States shall pay compensation as speci-
fied by this subchapter for the disability or death of an
employee resulting from personal injury sustained while
in the performance of his duty, unless the injury or death
is-
(1) caused by willful misconduct of the employee;
(2) caused by the employee's intention to bring
about the injury or death of himself or of another; or
(3) proximately caused by the intoxication of the
injured employee. 28
1(b) (b) Disability or death from a war-risk hazard or during
or as a result of capture, detention, or other restraint by a
hostile force or individual, suffered by an employee who is
employed outside the continental United States or in
Alaska or in the Canal Zone, is deemed to have resulted
from personal injury sustained while in the performance
of his duty, whether or not the employee was engaged in
the course of employment when the disability or disability
resulting in death occurred or when he was taken by the
- ~`Act of July 4, 1966, 80 Stat. 254; Act of Sept. 11, 1967, 81 Stat. 209.
26Act of July 4, 1960, 80 Stat. 256; Act of Sept. 11, 1967, 81 Stat. 209.
2 `See note 26 supra.
28Act of Sept. 7, 1916, 39 Stat. 742, 743; Act of Aug. 8, 1958, 72 Stat. 538.
5
PAGENO="0298"
980
hostile force or individual. This subsection does not apply
to an individual-
(1) whose residence is at or in the vicinity of the 1(b) (1)
place of his employment and who was not living there 1 (b) (2)
solely because of the exigencies of his employment,
unless he was injured or taken while engaged in the
course of his employment; 2
(2) who is a prisoner of war or a protected individ- 1 (b) (3)
ual under the Geneva Conventions of 1949 and is
detained or utilized by the United States.
This subsection does not affect the payment of com- 1 (b)
pensation under this subchapter derived otherwise
than under this subsection, but compensation for dis-
ability or death does not accrue for a period for which
pay, other benefit, or gratuity from the United States
accrues to the disabled individual or his dependents
on account of detention by the enemy or because
of the same disability or death, unless that pay,
betiefit, or gratuity is refunded or renounced.
SEC. 8103. MEDICAL SERVICES AND INITIAL MEDICAL AND
OTHER BENEFITS 9(a)
(a) The United States shall furnish to an employee who is
injured while in the performance of duty, the services, ap-
pliances, and supplies prescribed or recommended by a
qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period
of disability, or aid in lessening the amount of the monthly
compensation. These services, appliances, and supplies
shall be furnished-
(1) whether or not disability has arisen;
(2) notwithstanding that the employee has accepted
or is entitled to receive benefits under subchapter III
of chapter 83 of this title or another retirement system
for employees of the Government; and
(3) by or on the order of United States medical
officers and hospitals, or, when this is not practicable,
by or on the order of private physicians and hospitals
designated or approved by the Secretary.
The employee may be furnished transportation and
may be paid all expenses incident to the securing of
these services, appliances, and supplies which the
Secretary considers necessary and reasonable. These
expenses, when authorized or approved by the Sec-
retary, shall be paid from the Employees' Compen-
sation Fund. ~
(b) The Secretary, under such limitations or conditions
as he considers necessary, may authorize the employing
agencies to provide for the initial furnishing of medical
and other benefits under this section. The Secretary may
`~Act of July 28, 1945, 59 Stat. 505; Act of Aug. 8, 1958, 72 Stat. 538.
"Act of Aug. 8, 1958, 72 Stat. 538.
``See note 29 ~upra.
``Act of Sept. 7, 1916, 39 Stat. 743, 744; Act of June 26, 1926, 44 Stat. 772; Act of Oct. 14, 1949,
63 Stat. 862.
``Act of Sept. 13, 1960, 74 Stat. 907;Aot of July 4,1966,80 Stat. 253; Act of Sept. 11, 1967, 81 Stat. 209.
"See note 32 s-upra.
6
PAGENO="0299"
981
certify vouchers for these expenses out of the Employees'
Compensation Fund when the immediate superior of the
employee certifies that the expense was incurred in respect
to an injury which was accepted by the employing agency
as probably compensable under this subchapter. The
Secretary shall prescribe the form and content of the cer-
tificate.
9(b) SEC. 8104. VOCATIONAL REHABILITATION
The Secretary of Labor may direct a permanently dis-
abled individual whose disability is compensable under this
subchapter to undergo vocational rehabilitation. The Secre-
tary shall provide for furnishing the vocational rehabilita-
tion services. In providing for these services, the Secretary,
insofar as practicable, shall use the services or facilities of
State agencies and corresponding agencies which cooperate
with the Secretary of Health, Education, and Welfare in
carrying out the purposes of chapter 4 of title 29, except
to the extent that the Secretary of Labor provides for
furnishing these services under section 8103 of this title.
The cost of providing these services to individuals under-
going vocational rehabilitation under this section shall be
paid from the Employees' Compensation Fund. However,
in reimbursing a State or corresponding agency under an
arrangement pursuant to this section the cost to the
agency reimbursable in full under section 32 (b) (1) of
title 29 is excluded.
SEC. 8105. TOTAL DISABILITY
(a) If the disability is total, the United States shall pay
the employee during the disability monthly monetary
compensation equal to 66 2/3 percent of his monthly pay,
which is known as his basic compensation for total dis-
ability.
3(b) (b) The loss of use of both hands, both arms, both feet,
or both legs, or the loss of sight of both eyes, is prima facie
permanent total disability. 3 8
SEC. 8106. PARTIAL DISABILITY
4 (a) (1) (a) If the disability is partial, the .United States shall
pay the employee during the disability monthly monetary
compensation equal to 66 2/3 percent of the difference be-
tween his monthly pay and his monthly wage-earning
capacity after the beginning of the partial disability, which
is known as his basic compensation for partial disability.
4(a) (2) (b) The Secretary of Labor may require a partially
disabled employee to report his earnings from employment
of self-employment, by affidavit or otherwise, in the manner
and at the times the Secretary specifies. The employee
shall include in the affidavit or report the value of housing,
`5Act of Oct. 14, 1949, 63 5tat. 862.
"Act of Oct. 14, 1949, 63 Stat. 862. `The Secretary of Health, Education, and Welfare" was substi-
tuted for "him," based on Sec. 1 (proviso), 1950 Reorg. Plan No. 19, 64 5tat. 1271 and Sec. 5, 1953
Reorg. Plan No. 1, 67 5tat. 632.
``Act of 5ept. 7, 1916, 39 Stat. 743; Act of Oct. 14, 1949, 63 Stat. 855.
``Act of Oct. 14, 1949, 63 Stat. 855.
7
PAGENO="0300"
982
board, lodging, and other advantages which are part of
his earnings in employment or self-employment and which
can be estimated in money. An employee who-
(1) fails to make an affidavit or report when required;
or
(2) knowlingly omits or understates any part of his
earnings; forfeits his right to compensation with re-
spect to any period for which the affidavit or report was
required. Compensation forfeited under this subsection,
if already paid, shall be recovered by a deduction from
the compensation payable to the employee or other-
wise recovered under section 8129 of this title, unless
recovery is waived under that section.
(c) A partially disabled employee who- 4 (b)
(1) refuses to seek suitable work; or
(2) refuses or neglects to work after suitable work
is offered to, procured by, or secured for him;
is not entitled to compensation.
Snc. 8107. COMPENSATION SCHEDULE
(a) If there is permanent disability involving the loss 5 (a)
of use of a member or function of the body or involving dis-
figurement, the employee is entit]ed to basic compensation
for the disability, as provided by the schedule in subsection
(c) of this section, at the rate of 66 2/3 percent of his
monthly pay. The Basic compensation is-
(1) payable regardless of whether the cause of the
disability originates in a part of the body other than
that member;
(2) payable regardless of whether the disability also
involves another impairment of the body; and
(3) in addition to compensation for temporary total
or temporary partial disability.
(b) With respect to any period after payments under 5(b)
subsection (a) of this section have ended, an employee is
entitled to compensation as provided by-
(1) section 8105 of this title if the disability is total;
or
(2) section 8106 of this title if the disability is
partial.
(c) The compensation schedule is as follows:
(1) Arm lost, 312 weeks' compensation. s a (1)
(2) Leg lost, 288 weeks' compensation. 5 (a) (2)
(3) Hand lost, 244 weeks' compensation. 5a) (3)
(4) Foot lost, 205 weeks' compensation. 5 (a) (4)
(5) Eye lost, 160 weeks' compensation. S (a) (5)
(6) Thumb lost, 75 weeks' compensation. 5(a) (6)
(7) First finger lost, 46 weeks' compensation. 5 (a) (7)
(8) Great toe lost, 38 weeks' compensation. 5 (a) (8)
(9) Second finger lost, 30 weeks' compensation. 5 (a) (9)
(10) Third finger lost, 25 weeks' compensation. S a (10)
"See note 37 page 7.
40Act of Oct. 14, 1949, 63 Stat. 855, 856; Act of Sept. 13, 1960, 74 5tat. 907; Act of July 4, 1966,
80 Stat. 252; Act of Sept. 11, 1967, 81 Stat. 210.
4 `Act of Oct. 14, 1949, 63 Stat. 857; Act of July 4, 1966, 80 Stat. 252; Act of Sept. 11, 1967, 81 Stat. 210.
8
PAGENO="0301"
983
5(a) (11) (11) Toe other than great toe lost, 16 weeks' com-
pensation.
5 (a) (12) (12) Fourth finger lost, 15 weeks' compensation.
5 (a) (13) (13) Loss of hearing-
5 (a) (13) (A) (A) complete loss of hearing of one ear, 52
weeks' compensation; or
5 (a) (13) (B) (B) complete loss of hearing of both ears, 200
weeks' compensation.
5 (a) (14) (14) Compensation for loss of binocular vision or for
loss of 80 percent or more of the vision of an eye is the
same as for loss of the eye.
5(a) (15) (15) Compensation for loss of more than one phalanx
of a digit is the same as for loss of the entire digit. Com-
pensation for loss of the first phalanx is one-half of the
compensation for loss of the entire digit.
5 (a) (16) (16) If, in the case of an arm or a leg, the member
is amputated above the wrist or ankle, compensation is
the same as for loss of the arm or leg, respectively.
5 (a) (17) (17) Compensation for loss of use of two or more
digits, or one or more phalanges of each of two or
more digits, or a hand or foot, is proportioned to the
loss of use of the hand or foot occasioned thereby.
5 (a) (18) (18) Compensation for permanent total loss of use
of a member is the same as for loss of the member.
5 (a) (19) (19) Compensation for permanent partial loss of
use of a member may be for proportionate loss of use
of the member. The degree of loss of vision or hearing
under this schedule is determined without regard to
correction.
5 (a) (20) (20) In case of loss of use of more than one member
or parts of more than one member as enumerated by
this schedule, the compensation is for loss of use of each
member or part thereof, and the awards run consecu-
tively. However, when the injury affects only two or
more digits of the same hand or foot, paragraph (17)
of this subsection applies, and when partial bilateral
loss of hearing is involved, compensation is com-
puted on the loss as affecting both ears.
5 (a) (21) (21) For serious disfigurement of the face, head, or
neck of a character likely to handicap an individual in
securing or maintaining employment, proper and
equitable compensation not to exceed $3,500 shall be
awarded in addition to any other compensation pay-
able under this schedule. 2
SEC. 8108. REDUCTION OF COMPENSATION FOR SUBSEQUENT
5(0) INJURY TO SAME MEMBER
The period of compensation payable under the schedule
in section 8107(c) of this title is reduced by the period of
compensation paid or payable under the schedule for an
earlier injury if-
(1) compensation in both cases is for disability of
the same member or function or different parts of the
42Act of Oct. 14, 1949, 63 5tat. 856.
9
PAGENO="0302"
984
same member or function of for disfigurement; and
(2) the Secretary of Labor finds that compensation
payable for the later disability in whole or in part would
duplicate the compensation payable for the preexist-
ing disability.
In such a case, compensation for disability continuing
after the scheduled period starts on expiration of that
period as reduced under this section.
SEC. 8109. BENEFICIARIES OF AWARDS UNPAID AT DEATH;
ORDER OF PRECEDENCE 5(d) (1)
(a) If an individual-
(1) has sustained disability compensable under sec-
tion 8107 (a) of this title;
(2) has filed a valid claim in his lifetime; and
(3) dies from a cause other than the injury before
the end of the period specified by the schedule;
the compensation specified by the schedule that is un-
paid at his death, whether or not accrued or due at
his death, shall be paid-
(A) under an award made before or after the
death;
(B) for the period specified by the schedule;
(C) to and for the benefit of the persons then
in being within the classes and proportions and
on the conditions specified by this section; and
(D) in the following order of precedence:
(i) If there is no child, to the widow or s (d) (1) (A)
widower.
(ii) If there are both a widow or widower 5 (d) (1) (B)
and a child or children, one-half to the widow
or widower and one-half to the child or chil-
dren.
(iii) If there is no widow or widower, to s (d) (1) (C)
the child or children.
(iv) If there is no survivor in the above 5(d) (1) (B)
classes, to the parent or parents wholly or
partly dependent for support on the decedent,
or to other wholly dependent relatives listed
by section 8133 (a) (5) of this title, or to
both in proportions provided by regulation.
(v) If there is no survivor in the above s (d) (1) (E)
classes and no burial allowance is payable
under section 8134 of this title, an amount not
exceeding that which would be expendable
under section 8134 of this title if applicable
shall be paid to reimburse a person equitably
entitled thereto to the extent and in the
the proportion that he has paid the burial
expenses, but a compensated insurer or other
person obligated by ]aw or contract to pay
the burial expenses or a State or political
"See note 41 page 8.
"See note 41 page 8.
10
PAGENO="0303"
subdivision or entity is deemed not equitably
entitled.
5 (d) (2) (b) Payments under subsection (a) of this section, ex-
cept for an amount payable for a period preceding the
death of the individual, are at the basic rate of compensa-
tion for permanent disability specified by section 8107(a)
of this title even if at the time of death the individual was
entitled to the augmented rate specified by section 8110
of this title.
5 (d) (3) (A) (c) A surviving beneficiary under subsection (a) of this
section, except one under subsection (a) (D) (v), does not
have a vested right to payment and must be alive to re-
ceive payment.
5 (d) (3) (B) (d) A beneficiary under subsection (a) of this section,
except one under subsection (a) (D) (v), ceases to be en-
titled to payment on the happening of an event which
would terminate his right to compensation for death under
section 8133 of this title. When that entitlement ceases,
compensation remaining unpaid under subsection (a) of
this section is payable to the surviving beneficiary in ac-
cordance with subsection (a) of this section.
SEC. 8110. AUGMENTED COMPENSATION FOR DEPENDENTS
(a) For the purpose of this section, "dependent" means-
(1) a wife, if-
(A) she is a member of the same houshold as
the employee;
(B) she is receiving regular contributions from
the employee for her support; or
6 (a) (2) (A) ii (C) the employee has been ordered by a court
to contribute to her support;
6(a) (2) (B) (2) a husband, if wholly dependent on the employee
for support because of his own physical or mental dis-
ability;
6 (a) (2) (C) (ii) (3) an unmarried child, while living with the em-
ployee or receiving regular contributions from the
employee toward his support, and who is-
6 (a) (2) (C) ~ (A) under 18 years of age; or
6 (a) (2) (C) (i (B) over 18 years of age and incapable of self-
support because of physical or mental disability;
and
6(a) (2) (D) (4) a parent, while wholly dependent on and sup-
ported by the employee.
Notwithstanding paragraph (3) of this subsection,
compensation payable for a child that would other-
~vise end because the child has reached 18 years of age
shall continue if he is a student as defined by section
8101 of this title at the time he reaches 18 years of age,
for so long as he continues to be such a student or until
he marries. 6
6 (a) ~) (b) A disabled employee with one or more dependents is
"Act of Oct. 14, 1949, 63 Stat. 857, 858.
46This sentence added by Act of July 4, 1566, 80 Stat. 254; amended by Act of Sept. 11, 1867, 81
Stat. 210.
985
6 (a) (2)
6 (a) (2) (A)
6 (a) (2) (A) (i)
6 (a) (2) (A) (i)
11
PAGENO="0304"
986
entitled to have his basic compensation for disability aug-
mented-
(1) at the rate of 8 1/3 percent of his monthly pay
if that compensation is payable under section 8105
or 8107 (a) of this title; and
(2) at the rate of 8 1/3 percent of the difference
between his monthly pay and his monthly wage-earn-
ing capacity if that compensation is payable under
section 8106 (a) of this title.
SEC. 8111. ADDITIONAL COMPENSATION FOR SERVICES OF
ATTENDANTS OR VOCATIONAL REHABILITATION
(a) The Secretary of Labor may pay an employee who 6(b) (1)
has been awarded compensation an additional sum of not
more than $300 a month, as the Secretary considers neces-
sary, when the Secretary finds that the service of an at-
tendant is necessary constantly because the employee is
totally blind, or has lost the use of both hands or both
feet, or is paralyzed and unable to walk, or because of
other disability resulting from the injury making him so
helpless as to require constant attendance. 8
(b) The Secretary may pay an individual undergoing 6(b) (2)
vocational rehabilitation under section 8104 of this title
additional compensation necessary for his maintenance,
but not to exceed $100 a month. ~
SEC. 8112. MAxIMUM AND MINIMUM MONTHLY PAYMENTS 6(c)
Except as provided by Section 8138 of this title, the
monthly rate of compensation for disability, including
augmented compensation under section 8110 of this title but
not including additional compensation under section 8111
of this title, may not be more than 75 percent of the monthly
pay of the maximum rate of basic pay for GS-15, and in
case of total disability may not be less than 75 percent of
the monthly pay of the minimum rate of basic pay for
GS-2 or the amount of the monthly pay of the employee,
whichever is less.
SEC. 8113. INCREASE OR DECREASE OF BASIC COMPEN-
SATION 6 (d) (1)
(a) If an individual-
(1) was a minor or employed in a learner's capacity
at the time of injury; and
(2) was not physically or mentally handicapped
before the injury;
the Secretary of Labor, on review under section 8128
of this title after the time the wage-earning capacity of
the individual would probably have increased but for
the injury, shall recompute prospectively the mone-
tary compensation payable for disability on the basis
4 7Act of Oct. 14, 1949, 63 Stat. 858; Act of July 4, 1966, 80 Stat. 252; Act of Sept. 11, 1967, 81 Stat. 210.
48Act of May 13, 1936, 49 Stat. 1270; Act of Oct. 14, 1949, 63 Stat. 858, 859; Act of Sept. 13, 1960,
74 Stat. 906; Act of July 4, 1966, 80 Stat. 253; Act of Sept. 11, 1967, 81 Stat. 210.
"Act of Oct. 14, 1949, 63 Stat. 859 (provided maximum of 650 a month); Act of Sept. 13, 1960, 74
Stat. 906.
"Act of Oct. 14, 1949, 63 Stat. 859; Act of Sept. 13, 1960, 74 Stat. 906; Act of July 4, 1966, 80 Stat.
252; Act of Sept. 11, 1967, 81 Stat. 210.
12
PAGENO="0305"
987
of an assumed monthly pay corresponding to the
probably increased wage-earning capacity. 5 1
6 (d) (n (b) The Secretary, on review under section 8128 of this
title after a disabled employee becomes 70 years of age and
his wage-earning capacity would probably have decreased
because of old age aside from and independently of the
effects of the injury, may recompute prospectively the
monetary compensation payable for disability on the
basis of an assumed monthly pay corresponding to the
probable decreased wage-earning capacity. 5 2
6 (d) 2) (c) If an individual without good cause fails to apply
for and undergo vocational rehabilitation when so directed
under section 8104 of this title, the Secretary, on review
under section 8128 of this title and after finding that in
the absence of the failure the wage-earning capacity of the
individual would probably have substantially increased,
may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have
been his wage-earning capacity in the absence of the failure,
until the individual in good faith complies with the dir-
ection of the Secretary.
SEC. 8114. COMPUTATiON OF PAY
(a) For the purpose of this section-
12 (b) (1) "overtime pay" means pay for hours of service in
excess of a statutory or other basic workweek or other
basic unit or worktime, as observed by the employing
establishment; and
12(d) (2) "year" means a period of 12 calendar months
or the equivalent thereof as specified by regulations
prescribed by the Secretary of Labor."
12 (a) (b) In computing monetary compensation for disa-
bility or death on the basis of monthly pay, that pay is
determined under this section. 5 6
12 (c) w (c) The monthly pay at the time of injury is deemed
one-twelfth of the average annual earnings of the employee
at that time. When compensation is paid on a weekly basis,
the weekly equivalent of the monthly pay is deemed one-
fifty-second of the average annual earnings. However, for
so much of a period of total disability as does not exceed
90 calendar days from the date of the beghrning of com-
pensable disability, the compensation, in the discretion
of the Secretary of Labor, may be computed on the basis
of the actual daily wage of the employee at the time of
injury in which event he may be paid compensation for
the days he would have worked but for the injury.
12 (c) (2) (d) Average annual earnings are determined as follows:
12 (c) (2) (A) (1) If the employee worked in the employment in
which he was employed at the time of his injury during
5lAct of Sept. 7, 1916, 39 Stat. 743; Act of Feb. 12, 1927, 44 5tat. 1086, 1087; Act of Oct. 14, 1949,
63 Stat. 859.
12Act of Sept. 7, 1916, 39 Stat. 743; Act of Feb. 12, 1927, 44 Stat. 1086; Act of Oct. 14, 1949, 63 Stat.
859; Act of Sept. 11, 1967, 81 Stat. 2220.
``Act of Oct. 14, 1949, 63 Stat. 859.
``Act of Oct. 14, 1949, 63 Stat. 862.
``Act of Oct. 14, 1949, 63 Stat. 864.
"See note 54 supra.
``Act of Oct. 14, 1949, 63 Stat. 863.
13
75-623 0 - 74 - pt. 3 - 20
PAGENO="0306"
988
substantially the whole year immediately preceding
the injury and the employment was in a position for
which an annual rate of pay-
(A) was fixed, the average annual earnings are
the annual rate of pay; or
(B) was not fixed, the average annual earnings
are the product obtained by multiplying his daily
wage for the particular employment, or the ave-
rage thereof if the daily wage has fluctuated, by
300 if he was employed on the basis of a 6-day
workweek, 280 if employed on the basis of a 53/2-
day week, and 260 if employed on the basis of
a 5-day week.
(2) If the employee did not work in employment in 12(c) (2) (B)
which he was employed at the time of his injury during
substantially the whole year immediately preceding
the ipjury, but the position was one which would
have afforded employment for substantially a whole
year, the average annual earnings are a sum equal to
the average annual earnings of an employee of the
same class working substantially the whole immediately
preceding year in the same or similar employment by
the United States in the same or neighboring place,
as determined under paragraph (1) of this subsection.
(3) If either of the foregoing methods of determin- 12 (c) (2) (C)
ing the average annual earnings cannot be applied
reasonably and fairly, the average annual earnings are
a sum that reasonably represents the annual earning
capacity of the injured employee in the employment
in which he was working at the time of the injury
having regard to the previous earnings of the em-
ployee in Federal employment, and of other employees
of the United States in the same or most similar class
working in the same or most similar employment in
the same or neighboring location, other previous
employment of the employee, or other relevant factors.
However, the average annual earnings may not be
less than 150 times the average daily wage the em-
ployee earned in the employment during the days
employed within 1 year immediately preceding his
injury.
(4) If the employee served without pay or at nom- 12c (2) (D) (1)
inal pay, paragraphs (1), (2), and (3) of this sub-
section apply as far as practicable, but the average
annual earnings of the employee may not exceed the
minimum rate of basic pay for GS-15. If the average
annual earnings cannot be determined reasonably and 12c (2) (D) (ii)
fairly in the manner otherwise provided by this sec-
tion, the average annual earnings shall be determined
at the reasonable value of the service performed but
not in excess of $3,600 a year. 8
(e) The value of subsistence and quarters, and of any 12b)
other form or remuneration in kind for services if its value
`See note 57 page 18.
14
PAGENO="0307"
989
can be estimated in money, and premium pay under sec-
tion 5545(c) (1) of this title are included as part of the
pay, but account is not taken of- 69
(1) overtime pay 6
(2) additional pay or allowance authorized outside
the United States because of differential in cost of
living or other special circumstances; 61 or
(3) bonus or premium pay for extraordinary serv-
ices including bonus or pay for particularly hazardous
service in time of war. 6 2
13(b) SEC. 8115. DETERMINATION OR WAGE-EARNING CAPACITY
(a) In determining compensation for partial disability,
except permanent partial disability compensable under
sections 8107-8109 of this title, the wage-earning capacity
of an employee is determined by his actual earnings if his
actual earnings fairly and reasonably represent his wage-
earning capacity. If the actual earnings of the employee do
not fairly and reasonably represent his wage-earning capac-
ity or if the employee has no actual earnings, his wage-
earning capacity as appears reasonable under the circum-
stances is determined with due regard to-
(1) the nature of his injury;
(2) the degree of physical impairment;
(3) his usual employment;
(4) his age;
(5) his qualifications for other employment;
(6) the availability of suitable employment; and
(7) other factors or circumstances which may affect
his wage-earning capacity in his disabled condition. 63
13(a) (b) Section 8114(d) of this title is applicable in deter-
mining the wage-earning capacity of an employee after
the beginning of partial disability. 64
SEC. 8116. LIMITATIONS ON RIGHT TO RECEIVE COMPENSA-
TION
7(a) (a) While an employee is receiving compensation under
this subchapter, or if he has been paid a lump sum in
commutation of installment payments until the expiration
of the period during which the installment payments
would have continued, he may not receive salary, pay, or
remuneration of any type from the United States, except-
(1) in return for service actually performed; and
(2) pension for service in the Army, Navy, or Air
Force.
However, eligibility for or receipt of benefits under
subchapter III of chapter 83 of this title, or another re-
tirement system for employees of the Government,
"Act of Sept. 7, 1916, 39 Stat. 746; Act of Oct. 14, 1949, 63 5tat. 862; Act of Nov. 2, 1966, 80 5tat.
1164.
"Act of 5ept. 7, 1916, 39 Stat. 746; Act of Oct. 14, 1949. 63 5tat. 862.
"5cc note 54 76996 15.
"See note 54 paoe 15.
"Act of Oct. 14, 1949, 63 Stat. 864; Act of Sept. 13, 1960, 74 Stat. 908.
"(Section 8114(d) is apparently a typographical error-it should be 8114(e).) Act of Sept. 7, 1916,
39 Stat. 746; Act of Oct. 14, 1949, 63 Stat. 864.
15
PAGENO="0308"
990
the rigl~t of the employee to compensation for scheduled
disabilities specified by section 8107(c) of this title. 6 5
(b) An individual entitled to benefits under this sub- 7(8)
chapter because of his injury, or because of the death of
an em~Moyee, who also is entitled to receive from the
United States under a provision of statute other than this
subchapter payments or benefits for that injury or death
(except proceeds of an insurance policy), because of serv-
ice by him (Or in the case of death, by the deceased) as an
employee or in the armed forces, shall elect which benefits
he will receive. The individual shall make the election
within 1 year after the injury or death or within a further
time allowed for good cause by the Secretary of Labor.
The election when made is irrevocable, except as otherwise
provided by statute. 66
(c) The liability of the United States or an instrumen- 7(b)
tality thereof under this subchapter or any extension there-
of with respect to the injury or death of an employee is
exclusive and instead of all other liability of the United
States or the instrumentality to the employee, his legal
representative, spouse, dependents, next of kin, and any
other person otherwise entitled to recover damages from
the United States or the instrumentality because of the
injury or death in a direct judicial proceeding, in a civil
action, or in admiralty, or by an administrative or judicial
proceeding under a workmen's compensation statute or
under a Federal tort liability statute. However, this sub-
section does not apply to a master or a member of a crew of
a vessel. 6 7
Snc. 8117. TIME OF ACCRUAL OF RIGHT 2
An employee is not entitled to compensation for the first
3 days of temporary disability, except-
(1) when the disability exceeds 21 days;
(2) when the disability is followed by permanent
disability; or
(3) as provided by sections 8103 and 8104 of this
title. 68
SEC. 8118. ELECTION TO USE ANNUAL OR SICK LEAVE 8
An employee may use annual or sick leave to his credit
at the time disability begins, but his compensation for
disability does not begin, and the time periods specified by
section 8117 of this title do not begin to run, until the use
of the annual or sick leave ends. ~`
SEC. 8119. NOTICE OF INJURY; FAILURE TO GIVE
(a) An employee injured in the performance of his 15
duty, or someone on his behalf, shall give notice thereof.
The notice shall-
(1) be given within 48 hours after the injury; 15
``Act of Sept. 7, 1916, 39 Stat. 743, "Air Force" added in (a) (2) by Act of July 26, 1947, 61 Stat. 502;
Act of Sept. 13, 1960, 74 Stat. 907; Act of July 4, 1966, 80 Stat. 253; Act of Sept. 11, 1967, 81 Stat. 210.
``Act of July 4, 1944, 58 Stat. 712; Act of Oct. 14, 1949, 63 Stat. 861; Act of Sept. 13, 1960, 74 Stat. 907.
`Act of Oct. 14, 1949, 63 Stat. 861.
``Act of Sept. 7, 1916, 39 Stat. 743; Act of Oct. 14, 1949, 63 Stat. 854.
``See note 68 supra.
16
PAGENO="0309"
991
15 (2) be given to the immediate s~.iperior of the em-
ployee by personal delivery or by depositing it in the
mail properly stamped and addressed;
is (3) be in writing;
is (4) state the name and address of the~ employee;
16 (5) state the year, month, day, and hour when and
the particular locality where the injury occurred;
16 (6) state the cause and nature of the injury; and
18 (7) be signed by and contain the address of the
individual giving the notice. 70
(b) Compensation may be allowed only if the notice
is given within 48 hours after the injury or if the immediate
superior of the employee has actual knowledge of the
injury. However, the Secretary of Labor may allow com-
pensation if-
(1) the notice is filed within 1 year after the injury
and reasonable cause for the delay is ~ or
20 (2) the requirement for 48 hours' notice is waived
under section 8122 of this title.
SEC. 8120. REPORT OF INJURY
24 c~ Immediately after an injury to an employee which re-
sults in his death or probable disability, his immediate
superior shall report to the Secretary of Labor. The Sec-
retary may-
24 ~ (1) prescribe the information that the report shall
contain;
24 ~ (2) require the immediate superior to make sup-
plemental reports; and
28 (~) (3) obtain such additional reports and information
from employees as are agreed on by the Secretary and
the head of the employing agency. 7 2
SEC. 8121. CLAIM
Compensation under this subchapter may be allowed
only if an individual or someone on his behalf makes claim
therefor. The claim shall-
18 (1) be made in writing within the time specified by
section 8122 of this title;
18 (2) be delivered to the office of the Secretary of
Labor or to an individual whom the Secretary may
designate by regulation, or deposited in the mail
properly stamped and addressed to the Secretary of
his designee;
(3) be on a form furnished by the Secretary;
(4) contain all information required by the Sec-
retary;
19 (5) be sworn to by the individual entitled to compen-
sation or someone on his behalf; and
19 (6) except in case of death, be accompanied by a
certificate of the physician of the employee stating
the nature of the injury and the nature and probable
`°Act of Sept. 7, 1916, 39 5tat. 746.
O 1See note 70 supra.
O2Act of Sept. 7, 1916, 39 Stat. 747.
17
PAGENO="0310"
992
extent of the disability.
The Secretary may waive paragraphs (3)-(6) of this 19
section for reasonable cause shown.
SEC. 8122. TIME FOR MAKING CLAIM
(a) An original claim for compensation- 20
(1) for death shall be made within 1 year after the
death; and
(2) for disability shall be made within 60 days after
the injury.
However, the Secretary of Labor may allow an original
claim for disability to be made within 1 year after the
injury for reasonable cause shown.
(b) In a case of latent disability, the time for filing 20
claim does not begin to run until the employee has a com-
pensable disability and is aware, or by the exercise of
reasonable diligence should have been aware, of the causal
relationship of the compensable disability to his employ-
ment. In such a case, the time for giving notice of injury
begins to run when the employee is aware, or by the exer-
cise of reasonable diligence should have been aware, that
his condition is causally related to his employment, whether
or not there is a compensable disability.
(c) The Secretary may waive compliance with the re- 20
quirements of this subchapter for giving notice of injury
and for filing claim for compensation for disability or
death if-
(1) a claim is filed within 5 years after the injury
or death; and
(2) the Secretary finds-
(A) that the failure to comply was due to 20(1)
circumstances beyond the control of the individual
claiming benefits; or
(B) that the individual claiming benefits has 202
shown sufficient cause or reason in explanation
of, and material prejudice to the interest of the
United States has not resulted from, the failure. 7 6
(d) The time limitations in subsections (a)-(c) of this
section do not-
(1) begin to run against a minor until he reaches 21
years of age or has had a legal representative appointed;
or
(2) run against an incompetent individual while
he is incompetent and has no duly appointed legal
representative.
SEC. 8123. PHYSICAL EXAMINATIONS
(a) An employee shall submit to examination by a med- 21
ical officer of the United States, or by a physician desig-
nated or approved by the Secretary of Labor, after the
``See note 70 page 17.
`4Act of Sept. 7, 1916, 39 5tat. 747; Act of June 13, 1922, 42 Stat. 650; Act of Oct. 14, 1949, 63 Stat.
867.
"Act of Sept. 13, 1960, 74 Stat. 908; Act of July 4, 1966, 80 Stat. 254; Act of Sept. 11, 1967, 81 Stat.
210.
``Act of July 28, 1945, 59 Stat. 503.
``Act of July 4, 1966, 80 Stat. 254, 255; Act of Sept. 11, 1967, 81 Stat. 210.
18
PAGENO="0311"
993
injury and as frequently and at the times and places as may
be reasonably required. The employee may have a physician
22 designated and paid by him present to participate in the
examination. If there is disagreement between the physician
making the examination for the United States and the
physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.
21 (b) An employee is entitled to be paid expenses incident
to an examination required by the Secretary which in the
opinion of the Secretary are necessary and reasonable, in-
cluding transportation and loss of wages incurred in order
to be examined. The expenses, when authorized or ap-
proved by the Secretary, are paid from the Employees'
Compensation Fund.
23(s) (c) The Secretary shall fix the fees for examinations
held under this section by physicians not employed by or
under contract to the United States to furnish medical
services to employees. The fees, when authorized or ap-
proved by the Secretary, are paid from the Employees'
Compensation Fund.
21 (d) If an employee refuses to submit to or obstructs an
examination, his right to compensation under this sub-
chapter is suspended until the refusal or obstruction stops.
Compensation is not payable while a refusal or obstruction
continues, and the period of the refusal or obstruction is
deducted from the period for which compensation is
payable to the employee. 78
38 Sxc. 8124. FINDINGs AND AWARD; HEARINGS
(a) The Secretary of Labor shall determine and make a
finding of facts and make an award for or against payment
of compensation under this subchapter after-
(1) considering the claim presented by the benefici-
ary and the report furnished by the immediate superior;
and
(2) completing such investigation as he considers
necessary.
(b) (1) Before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a
decision of the Secretary under subsection (a) of this sec-
tion is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary. At the
hearing, the claimant is entitled to present evidence in
further support of his claim. Within 30 days after the
hearing ends, the Secretary shall notify the claimant in
writing of his further decision and any modifications of
the award he may make and of the basis of his decision.
(2) In conducting the hearing, the representative
of the Secretary is not bound by common law or
statutory rules of evidence, by technical or formal
rules of procedure, or by section 554 of this title ex-
cept as provided by this subchapter, but may conduct
7 8Act of Sept. 7, 1916, 39 Stat. 747; Act of June 6, 1926, 44 Stat. 772; Act of Oct. 14, 1949, 63 Stat. 865.
~9Act of Sept. 7, 1916, 39 Stat. 749.
19
PAGENO="0312"
994
the hearing in such manner as to best ascertain the
the right of the claimant. For this purpose, he shall
receive such relevant evidence as the claimant adduces
and such other evidence as he determines necessary or
useful in evaluating the claim. 8
SEC. 8125. MIs~EIIAVIOR AT PROCEEDINGS 23(c)
If an individual-
(1) disobeys or resists a iawful order or process in
proceedings under this subchapter before the Secre-
tary of Labor or his representative; or
(2) misbehaves during a hearing or so near the
place of hearing as to obstruct it;
the Secretary or his representative shall certify the
facts to the district court having jurisdiction in the
place where he is sitting. The court, in a summary
manner, shall hear the evidence a~ to the acts corn-
pia~ned of and if the evidence warrants, punish the
individual in the same manner, and to the same extent
as for a contempt committed before the court, or
commit the individual on the same conditions as if
the forbidden act had occurred with reference to the
process of or in the presence of the court. 8 1
SEC. 8126. SUBPOENAS; OATHS; EXAMINATION OF WITNESSES 29
The Secretary of Labor, on any matter within his juris-
diction under this subchapter, may-
(1) issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles;
(2) administer oaths;
(3) examine witnesses; and
(4) require the production of books, papers, docu-
ments, and other evidence. 8 2
SEC. 8127. REPRESENTATION; ATTORNEYS' FEES 23(b)
(a) A claimant may authorize an individual to represent
him in any proceeding under this subchapter before the
Secretary of Labor.
(b) A claim for legal or other services furnished in respect
~o a case, claim, or award for compensation under this sub-
.~hapter is valid only if approved by the Secretary.
SEC. 8128. REVIEW OF AWARD 37
(a) The Secretary of Labor may review an award for or
against payment of compensation at any time on his own
motion or on application. The Secretary, in accordance
with the facts found on review, may-
(1) end, decrease, or increase the compensation pre-
viously awarded; or
(2) award compensation previously refused or
discontic~ued.
`°Act of July 4, 1965, 80 Stat. 255; Act of Sept. 11, 1967, 81 Stat. 211.
``Act of Oct. 14, 1949, 63 Stat. 865.
"Act of Sept. 7, 1916, 39 Stat. 748.
`~See note 8~ cupra.
"See note 79 pagc 19.
20
PAGENO="0313"
995
(b) The action of the Secretary or his designee in allow-
ing or denying a payment under this subchapter is-
(1) final and conclusive for all purposes and with
respect to all questions of law and fact; and
(2) not subject to review by another official of the
United States or by a court by mandamus or other-
wise. 8 5
Credit shall be allowed in the accounts of a certifying
or disbursing official for payments in accordance with
that action. 8 6
38 (a) SEC. 8129. RECOvERY OF OVERPAYMENTS
(a) When an overpayment has been made to an in-
dividual under this subchapter because of an error of fact
or law, adjustment shall be made under regulations pre-
scribed by the Secretary of Labor by decreasing later pay-
ments to which the individual is entitled. If the individual
dies before the adjustment is completed, adjustment shall be
made by decreasing later benefits payable under this sub-
chapter with respect to the individual's death.
38(b) (b) Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or
recovery would defeat the purpose of this subchapter or
would he against equity and good conscience.
38 (c) (c) A certifying or disbursing official is not liable for an
amount certified or paid by him when-
(1) adjustment or recovery of the amount is waived
under subsection (b) of this section; or
(2) adjustment under subsection (a) of this section
is not completed before the death of all individuals
against whose benefits deductions are authorized. 87
25 SEC. 8130. ASSIGNMENT OF CLAIM
An assignment of a claim for compensation under this
subchapter is void. Compensation and claims for compen-
sation are exempt from claims of creditors. 8 8
28 SEC. 8131. SUBROGATION OF THE UNITED STATES
(a) If an injury or death for which compensation is pay-
able under this subchapter is caused under circumstances
creating a legal liability on a person other than the United
States to pay damages, the Secretary of Labor may require
the beneficiary to-
(1) assign to the United States any right of action
he may have to enforce the liability or any right he
may have to share in money or other property received
in satisfaction of that liability; or
(2) prosecute the action in his own name.
An employee required to appear as a party or witness
in the prosecution of such an action is in an active
duty status while so engaged.
85Act of June 5, 1924, 43 Stat. 389; Act of July 28, 1945, 59 Stat. 504.
86Act of July 28, 1945, 59 Stat. 504.
8CAct of Sept. 7, 1916, 39 Stat. 749; Act of Oct. 14, 1949, 63 Stat. 864, 865.
8 8See note 84 page 50.
21
PAGENO="0314"
996
(b) A beneficiary who refuses to assign or prosecute an
action in his own name when required by the Secretary
is not entitled to compensation under this subchapter.
(c) The Secretary may prosecute or compromise a cause
of action assigned to the United States. When the Secre-
tary realizes on the cause of action, he shall deduct there-
from and place to the credit of the 1i~mployees' Compen-
sation Fund the amount of compensation already paid to
the beneficiary and the expense of realization or collection.
Any surplus shall be paid to the beneficiary and credited
on future payments of compensation payable for the same
injury. However, the beneficiary is entitled to not less
than one-fifth of the net amount of a settlement or recovery
remaining after the expenses thereof have been deducted. 8 9
(d) If an injury or death for which compensation is 41
payable under this subchapter is caused under circum-
stances creating a legal liability in the Panama Canal
Company tO pay damages under the law of a State, a ter-
ritory or possession of the United States, the District of
Columbia, or a foreign country, compensation is not pay-
able until the individual entitled to compensation-
(1) releases to the Panama Canal Company any
right of action he ma~ have to enforce the liability of
the Panama Canal Company; or;
(2) assigns to the United States any right he may
have to share in money or other property received
in satisfaction of the liability of the Panama Canal
Company. 90
SEC. 8132. ADJUSTMENT AFTER RECOVERY FROM A THIRD
PERSON
If an injury or death for which compensation is payable
under this subchapter is caused under circumstances cre-
ating a legal liability in a person other than the United
States to pay damages, and a beneficiary entitled to com-
pensation from the United States for that injury or death 27
receives money or other property in satisfaction of that
liability as a result of suit or settlement by him or in his
behalf, the beneficiary, after deducting therefrom the costs
of suit and a reasonable attorney's fee, shall refund to the
United States the amount of compensation paid by the
United States and credit any surplus on future payments 27A
of compensation payable -to him for the same injury. The
amount refunded to the United States shall be credited to
the Employees' Compensation Fund. If compensation has
not been paid to the beneficiary, he shall credit the money 27(B)
or property on compensation payable to him by the United
States for the same injury. However, the beneficiary is en-
titled to retain at least one-fifth of the net amount of the
money or other property remaining after the expenses of
a suit or settlement have been deducted, plus an amount
8~Act of Sept. 7, 1916, 39 Stat. 747; Act of Sept. 13, 1960, 74 Stat. 908 (added sentence placing em-
pioyee appearing as a party or witness on active duty status); Act of July 4, 1966, 80 Stat. 255; Act of
Sept. 11, 1967, 81 Stat. 211.
90Act of Sept. 7, 1916, 39 Stat. 750. (The Panama Railroad Co. was redesignated Panama Canal
Company by Act of Sept. 26, 1950, 64 Stat. 1038).
22
PAGENO="0315"
997
equivalent to a reasonable attorney's fee proportionate to
the refund to the United States. ~`
SEC. 8133. COMPENSATION IN CASE OF DEATH
10 (a) If death results from an injury sustained in the per-
formance of duty, the United States shall pay a monthly
compensation equal to a percentage of the monthly pay
of the deceased employee in accordance with the following
schedule:
10(A) (1) To the widow or widower, if there is no child,
45 percent.
10(C) (2) To the widow or widower, if there is a child,
40 percent and in addition 15 percent for each child
not to exceed a total of 75 percent for the widow or
widower and children.
10(D) (3) To the children, if there is no widow or widower,
35 percent for one child and 15 percent additional for
each additional child not to exceed a total of 75
percent, divided among the children share and share
alike.
10(E) (4) To the parents, if there is no widow, widower,
or child, as follows-
(A) 25 percent if one parent was wholly de-
pendent on the employee at the time of death and
the other was not dependent to any extent;
(B) 20 percent to each if both were wholly
dependent; or
(C) a proportionate amount in the discretion
of the Secretary of Labor if one or both were partly
dependent.
If there is a widow, widower, or child, so much of the
percentages are payable as, when added to the total
percentages ~~ayable to the widow, widower, and chil-
dren, will not exceed a total of 75 percent.
10 (F) (5) To the brothers, sisters, grandparents, and
grandchildren, if there is no widow, widower, child, or
dependent parent, as follows-
(A) 20 percent if one was wholly dependent on
the employee at the time of death;
(B) 30 percent if more than one was wholly de-
pendent, divided among the dependents share
and share alike; or
(C) 10 percent if no one is wholly dependent
but one or more is partly dependent, divided
among the dependents share and share alike.
If there is a widow, widower, child, or dependent
parent, so much of the percentages are payable as,
when added to the total percentages payable to the
widow, widower, children, and dependent parents, will
not exceed a total of 75 percent.
(b) The compensation payable under subsection (a) of
this section is paid from the time of death until-
``Actof5ept.7, 1916, 39 Stat. 747;Actof July 4, 1966, 8OStat. 255; Act of Sept. 11, 1967, 81 Stat. 211.
23
PAGENO="0316"
998
(1) a widow dies or remarries; 10(B)
(2) a widower dies or remarries or becomes capable
of self-support;
(3) a child, a brother, a sister, or a grandchild dies 10 (C)
or marries or becomes 18 years of age, or if over
age 18 and incapable of self-support becomes capable io (G)
of self-support; or
(4) a parent or grandparent dies or marries or 10(G
ceases to be dependent.
Notwithstanding paragraph (3) of this subsection,
compensation payable to or for a child, a brother or
sister, or grandchild that would otherwise end be-
cause the child, brother or sister, or grandchild has
reached 18 years of age shall continue if he is a stu-
dent as defin~d by section 8101 of this title at the time
he reaches 18 years of age for so long as he continues
to be such a student or until he marries.
(c) On the cessation of compensation under this sec- 10 .n
tion to or on account of an individual, the compensation
of the remaining individuals entitled to compensation
for the unexpired part of the period during which their
compensation is payable, is that which they would have
received if they had been the only individuals entitled to
compensation at the time of the death of the employee.
(d) When there are two or more classes of individuals en- mo (J)
titled to compensation under this section and the appor-
tionment of compensation under this section would result
in injustice, the Secretary may modify the apportionment
to meet the requirements of the case.
(e) In computing compensation under this section, the 10 (K)
monthly pay is deemed not less than the minimum rate of
basic pay for GS-2. However, the total monthly compen-
sation may not exceed-
(1) the monthly pay computed under section 8114
of this title; or
(2) 75 percent of the monthly pay of the maximum
rate of basic pay for GS-15. 9 2
SEC. 8134. FUNERAL EXPENSES; TRANSPORTATION OF BODY 11
(a) If death results from an injury sustained in the per-
formance of duty, the United States shall pay, to the per-
sonal representative of the deceased or otherwise, funeral
and burial expenses not to exceed $800, in the discretion
of the Secretary of Labor.
(b) The body of an employee whose home is in the
United States, in the discretion of the Secretary, may be
embalmed and transported in a hermetically sealed casket
to his home or last place of residence at the expense of the
Employees' Compensation Fund if-
(1) the employee dies from-
(A) the injury while away from his home or
official station or outside the United States; or
92Act of Sept. 7, 1916, 39 Stat. 744, 745; Act of Feb. 12, 1927, 44 Stat. 1087; Act of July 28, 1945,
59 Stat. 503; Act of Oct. 14, 1949, 63 Stat. 859, 860; Act of Sept. 13, 1960, 74 Stat. 906; Act of July 4,
1966, 80 Stat. 252, 253; Act of Sept. 11, 1967, 81 Stat. 211.
24
PAGENO="0317"
999
(B) from other causes while away from his
home or official station for the purpose of re-
ceiving medical or other services, appliances,
supplies, or examination under this subchapter;
and
(2) the relatives of the employee request the return
of his body.
If the relatives do not request the return of the body
of the employee, the Secretary may provide for its
disposition and incur and pay from the Employees'
Compensation Fund the necessary and reasonable
transportation, funeral, and burial expenses.
14 SEC. 8135. LUMP-SUM PAYMENT
(a) The liability of the United States for compensation
to a beneficiary in the case of death or of permanent total
or permanent partial disability may be discharged by a
lump-sum payment equal to the present value of all future
payments of compensation computed at 4 percent true
discount compounded annually if-
(1) the monthly payment to the beneficiary is less
than $5 a month;
(2) the beneficiary is or is about to become a non-
resident of the United States; or
(3) the Secretary of Labor determines that it is
for the best interest of the beneficiary.
The probability of the death of the beneficiary before
the expiration of the period during which he is en-
titled to compensation shall be determined according
to the American Experience Table of Mortality, but
the lump-sum payment to a widow or widower of the
deceased employee may not exceed 60 months' com-
pensation. The probability of the happening of any
other contingency affecting the amount or duration of
compensation shall be disregarded. `4
(b) On remarriage, a widow or widower entitled to
compensation under section 8133 of this title, shall be
paid a lump sum equal to twenty-four times the monthly
compensation payment (excluding compensation on ac-
count of another individual) to which he was entitled im-
mediately before the remarriage.
42 SEC. 8136. INITIAL PAYMENTS OUTSIDE THE UNITED STATES
If an employee is injured outside the continental United
States, the Secretary of Labor may arrange and provide
for initial payment of compensation and initial furnishing
of other benefits under this subchapter by an employee or
agent of the United States designated by the Secretary
for that purpose in the locality in which the employee was
employed or the injury occurred. 9
``Act of 5ept. 7, 1916, 39 Stat. 745; Act of Feb. 12, 1927, 44 Stat. 1087; Act of July 28, 1945, 59 Stat.
503; Act of Oct. 14, 1949, 63 Stat. 860; Act of Sept. 13, 1960, 74 Stat. 906.
``See note 70 page 17.
``Act of July 4, 1966, 80 Stat. 254 (applies only with respect to remarriages occurring after July 4,
1966, 80 Stat. 257); Act of Sept. 11, 1967, 81 Stat. 211. 212.
``Act of July 29, 1942, 56 Stat. 726.
25
PAGENO="0318"
1000
SEO. 8137. COMPENSATION FOR NONCITIZENS AND NON- 42
RESIDENTS
(a) When the Secretary of Labor finds that the amount
of compensation payable to an employee who is neither a
citizen nor resident of the United States or Canada, or pay-
able to a dependent of such an employee; is substantially
disproportionate to compensation for disability or death
payable in similar cases under local statute, regulation,
custom, or otherwise at the place outside the continental
United States or Canada where the employee is working at
the time of injury, he may provide for payment of compen-
sation on a basis reasonably in accord with prevailing local
payments in similar cases by-
(1) the adoption or adaption of the substantive
features, by a schedule or otherwise, of local work-
men's compensation provisions or other local statute,
regulation, or custom applicable in cases of personal
injury or death; or
(?) establishing special schedules of compensation
for injury, death, and loss of use of members and
functions of the body for specific classes of employees,
areas, and places.
Irrespective of the basis adopted, the Secretary may
at any time-
(A) modify or limit the maximum monthly
and total aggregate payments for injury, death,
and medical or other benefits;
(B) modify or limit the percentages of the
wage of the employee payable as compensation
for the injury or death; and
(C) modify, limit, or redesignate the class or
classes of beneficiaries entitled to death benefits,
including the designation of persons, represen-
tatives, or groups entitled to payment under
local statute or custom whether or not included
in the classes of beneficiaries otherwise specified
by this subchapter.
(b) In a case under this section, the Secretary or his
designee may-
(1) make a lump-sum award in the manner pre-
scribed by section 8135 of this title when he or his
designee considers it to be for the best interest of the
United States; and
(2) compromise and pay a claim for benefits, includ-
ing a claim in which there is a dispute as to jurisdiction
or other fact or a question of law.
Compensation paid under this subsection is instead
of all other compensation from the United States for the
same injury or death, and a payment made under this
subsection is deemed compensation under this sub-
chapter and is satisfaction of all liability of the United
States in respect to the particular injury or death.
(c) The Secretary may delegate to an employee or
agency of the United States, with such limitations and
26
PAGENO="0319"
1001
right of review as he considers advisable, authority to
process, adjudicate, commute by lump-sum award, com-
promise, and pay a claim or class of claims for compensa-
tion, and to provide other benefits, locally, under this
section, in accordance with such regulations and instruc-
tions as the Secretary considers necessary. For this pur-
pose, the Secretary may provide or transfer funds, includ-
ing reimbursement of amounts paid under this subchapter.
(d) The Secretary may waive the application of this
subchapter in whole or in part and for such period or periods
as he may fix if he finds that-
(1) conditions prevent the establishment of facil-
ities for processing and adjudicating claims under
this section; or
(2) claimants under this section are alien enemies.
(e) The Secretary may apply this section retrospectively
with adjustment of compensation and benefits as he con-
siders necess~ry and proper.
SEC. 8138. MINIMUM LIMIT MODI,FICATION FOR NONCITJ-
42 ZENS AND ALIENS
(a) Except as provided by subsection (b) of this sec-
tion, the minimum limit on monthly compensation for
disability under section 8112 of this title and the minimum
limit on monthly pay on which death compensation is
computed under section 8133 of this title do not apply in
the case of a noncitizen employee, or a class or classes of
noncitizen employees, who sustain injury outside the conti-
nental United States. The Secretary of Labor may establish
a minimum monthly pay on which death compensation is
computed in the case of a class or classes of such non-
citizen employees. 8
(b) The President may remove or modify the minimum
limit on monthly compensation for disability under section
8112 of this title and the minimum limit on monthly pay
on which death compensation is computed under section
8133 of this title in the case of an alien employee, or a class
or classes of alien employees, of the Canal Zone Govern-
ment or the Panama Canal Company. ~
SEC. 8139. EMPLOYEES OF THE DISTRICT OF COLUMBIA
Compensation awarded to an employee of the govern-
ment of the District of Columbia shall be paid in the man-
ner provided by statute for the payment of the general ex-
penses of the government of the District of Columbia. `°
SEC. 8140. MEMBERS OF THE RESERVE OFFICERS' TRAIN-
ING CORPS
(a) Subject to the provisions of this section, this sub-
chapter applies to a member of, or applicant for member-
__________ ship in, the Reserve Officers' Training Corps of the Army,
97Act of July 28, 1945, 59 Stat. 503, 504.
98Act of July 29, 1942, 56 Stat. 725; Act of Sept. 13, 1960, 74 Stat. 910.
99Act of Sept. 7, 1916, 39 Stat. 750; Act of April 6, 1938, 52 Stat. 201.
100See note 4 page 2.
27
PAGENO="0320"
1002
Navy, or Air Force who suffers disability or death from an
injury incurred in line of duty--
(1) while engaged in a flight or in flight instruction
under chapter 103 of title 10; or
(2) while performing authorized travel to or from,
or while attending, field training or a practice cruise
under chapter 103 of title 10.
(b) For the purpose of this section, an injury is incurred
in line of duty only if it is the proximate result of the per-
formance of military training by the member concerned, or
of his travel to or from that training, during the periods
specified by subsection (a) (2) of this section. A member
or applicant for membership who contracts a disease or
illness which is the proximate result of the performance of
training during the periods specified by subsection (a) (2) of
this section is considered for the purpose of this section to
have been injured in line of duty during that period.
Subject to review by the Secretary of Labor, the Secretary
of the military department concerned, unde~r regulations
prescribed by him, shall determine whether or riot an in-
jury, disease, or illness was incurred or contracted in line
of duty and was the proximate result of the performance of
military training by the member concerned or of his travel
to or from that military training.
(c) In computing the compensation payable under this
section, the monthly pay received by the injured or de-
ceased individual, in cash and kind, is deemed $150.
(d) The Secretary of the military department concerned
shall cooperate fully with the Department of Labor in the
prompt investigation and prosecution of a case involving
the legal liability of a third party other than the United
States.
(e) An individual may not receive disability benefits
under this section while on active duty with the armed
forces, but these benefits may be reinstated when the in-
dividual is released from that active duty.
(f) Expenses incurred by a military department in pro-
viding hospitalization, medical and surgical care, necessary
transportation incident to that hospitalization or medical
and surgical care, or in connection with a funeral and burial
on behalf of an individual covered by subsection (a) of this
section shall be reimbursed by the Secretary of Labor
from the Employees' Compensation Fund in accordance
with this subchapter. However, reimbursement may not
be made for hospitalization or medical or surgical care
provided an individual while attending field training or
a practice cruise under chapter 103 of title 10. ~01
SEC. 8141. CIvIL AIR PATROL VOLUNTEERS
(a) Subject to the provisions of this section, this sub-
chapter applies to a volunteer civilian member of the
Civil Air Patrol, except a Civil Air Patrol Cadet.
101Act of Aug. 1, 1956, 70 Stat. 805, 806; Act of Oct. 13, 1964, 78 Stat. 1073, 1074.
28
PAGENO="0321"
1003
(b) In administering this subchapter for a member of
the Civil Air Patrol covered by this section-
(1) the monthly pay of a member is deemed $300
for the purpose of computing compensation for dis-
ability or death;
(2) the percentages applicable to payments under
section 8133 of this title are-
(A) 45 percent for section 8133(a) (2) of this
title, if the member dies fully or currently insured
under subchapter II of chapter 7 of title 42, with
no additional payments for a child or children
while the widow or widower remains eligible for
payments under section 8133(a) (2) of this title;
(B) 20 percent for section 8133(a) (3) of this
title for one child and 10 percent additional for
each additional child, but not to exceed a total of
75 percent, if the member died fully or currently
insured under subchapter II of chapter 7 of title
42; and
(C) 25 percent for section 8133(a) (4) of this
title, if one percent was wholly dependent on the
deceased member at the time of his death and the
other was not dependent to any extent; 16 per-
cent to each, if both were wholly dependent; and
if one was or both were partly dependent, a pro-
portionate amount in the discretion of the Secre-
tary of Labor;
(3) a payment may not be made under section
8133(a) (5) of this title;
(4) "performance of duty" means only active serv-
ice, and travel to and from that service, rendered in
performance or support of operational missions of the
Civil Air Patrol under direction of the Department of
the Air Force and under written authorization by
competent authority covering a specific assignment
and prescribing a time limit for the assignment; and
(5) the Secretary of Labor or his designee shall in-
form the Secretary of Health, Education, and Wel-
fare when a claim is filed and eligibility for compensa-
tion is established under section 8133(a) (2) or (3)
of this title, and the Secretary of Health, Education,
and Welfare shall certify to the Secretary of Labor
as to whether or not the member concerned was fully
or currently insured under subchapter II of chapter
7 of title 42 at the time of his death.
(c) The Secretary of Labor or his designee may inform
the Secretary of the Air Force or his designee when a claim
is filed. The Secretary of the Air Force, on request of the
Secretary of Labor, shall advise him of the facts concerning
the injury and whether or not the member was rendering
service, or engaged in travel to or from service, in perform-
ance or support of an operational mission of the Civil Air
Patrol at the time of injury. This subsection does not
dispense with the report of the immediate superior of the
29
75-623 0 - 74 - pt. 3 - 21
PAGENO="0322"
1004
member required by section 8120 of this title, or other re-
ports agreed on under that section. 102
SEC. 8142. PEACE CORPS VOLUNTEERS
(a) For the purpose of this section, "Volunteer" means-
(1) a Volunteer enrolled in the Peace Corps under
section 2504 of title 22;
(2) a Volunteer leader enrolled in the Peace Corps
under section 2505 of title 22; and
(3) an applicant for enrollment as a volunteer or
Volunteer leader during a period of training under
section 2507(a) of title 22 before enrollment.
(b) Subject to the provisions of this section, this sub-
chapter applies to a volunteer, except that entitlement to
disability compensation payments does not commence until
the day after the date of termination of his service as a
volunteer.
(c) For the purpose of this subchapter-
(1) a volunteer is deemed receiving monthly pay at
the minimum rate for GS-7;
(2) a volunteer leader referred to by section 2505
of title 22 is deemed receiving monthly pay at the
minimum rate for GS-11;
(3) an injury suffered by a volunteer when he is
outside the several States and the District of Columbia
is deemed proximately caused by his employment,
unless the injury or disease is-
(A) caused by willful misconduct of the vol-
unteer;
(B) caused by the volunteer's intention to bring
about the injury or death of himself or of another;
or
(C) proximately caused by the intoxication of
the injured volunteer; and
(4) the period of service of an individual as a vol-
unteer includes-
(A) any period of training under section 2507
(a) of title 22 before enrollment as a volunteer; and
(B) the period between enrollment as a vol-
unteer and the termination of service as a vol-
unteer by the President or by death or resigna-
tion. 1 0
SEC. 8143. JOB CORPS ENROLLEES; VOLUNTEERS IN SERV-
ICE TO AMERICA
(a) Subject to the provisions of this subsection, this
subchapter applies to an enrollee in the Job Corps under
sections 2711-2720 of title 42, except that compensation
for disability does not begin to accrue until the day after
the date of terminatiOn of his enrollment as an enrollee.
In administering this subchapter for an enrollee covered
by this subsection-
.102Act of Aug. 3. 1956, 70 Stat. 980, 981.
1°'Act of Sept. 22, 1961, 75 Stat. 613, 614; Act of Sept. 11, 1967, 81 Stat. 212.
30
PAGENO="0323"
1005
(1) the monthly p~y of an enrollee is deemed that
received at the minimum rate for GS-2;
(2) section 8113(a), (b) of this title applies to an
enrollee; and
(3) "performance of duty" does not inc]ude an act
of an enrollee while absent from his assigned post of
duty, except while participating in an activity (in-
cluding an activity while on pass or during travel to or
from the post of duty) authorized by or under the
direction and supervision of the Job Corps. 1 04
(b) This subchapter applies to a volunteer in service to
America during training under section 2991a(a) of title
42 and a volunteer in service to America assigned under
section 2991a(a) (2) of title 42 to the same extent as en-
rollees of the Job Corps under subsection (a) of this sec-
tion. However, for the purpose of the computation de-
scribed in subsection (a) (1) of this section, the monthly
pay of a volunteer is deemed that received at the minimum
rate for GS-7. 1 0 6
SEC. 8143a. MEMBERS OF THE NATIONAL TEACHER CORPS
Subject to the provisions of this section, this subchapter
applies to a member of the National Teacher Corps. In
administering this subchapter for a member covered by
this section-
(1) "performance of duty" does not include an
act of a member while-
(A) on authorized leave; or
(B) absent from his assigned post of duty,
except while participating in an activity author-
ized by or under the direction or supervision of
the Commissioner of Education; and
(2) in computing compensation for disability or
death, the monthly pay of a member is deemed his
actual pay or that received at the minimum rate for
GS-6, whichever is greater. 1 0 6
SEC. 8144. STUDENT-EMPLOYEES
A student-employee as defined by section 5351 of this
title who suffers disability or death as a result of personal
injury arising out of and in the course of training, or in-
curred in the performance of duties in connection with that
training, is considered for the purpose of this subchapter an
employee who incurred the injury in the performance of
duty. 107
SEC. 8145, ADMINISTRATION
32 The Secretary of Labor shall administer, and decide all
questions arising under, this subchapter. He may-
30 (1) appoint employees to administer this sub-
chapter; and
l04Act of Aug. 20, 1964, 78 Stat. 510; Act of Sept. 11, 1967, 81 Stat. 212.
lOlAct of Aug. 20, 1964, 78 Stat. 531; Act of Sept. 11, 1967, 81 Stat. 212.
lOeAct of Sept. 11, 1967, 81 Stat. 212.
`°`Act of Aug. 4, 1947, 61 Stat. 727.
31
PAGENO="0324"
1006
(2) delegate to an employee of the Department of 28
Labor any of the powers conferred on him by this
subchapter. 1 0 8
SEC. 8146. ADMINISTRATION FOR THE CANAL ZONE AND 42
TuE ALASKA RAILROAD
(a) The President, from time to time, may transfer the
administration of this subchapter-
(1) so far as employees of the Canal Zone Govern-
ment and of the Panama Canal Company are con-
cerned to the Governor of the Canal Zone; and
(2) so far as employees of The Alaska Railroad are
concerned to the general manager of The Alaska
Railroad.
(b) When administration is transferred under subsec-
tion (a) of this section, the expenses incident to physical
examinations which are payable under section 8123 of this
title shall be paid from appropriations for the Canal Zone
Government or for The Alaska Railroad or from funds of
the Panama Canal Company, as the Case may be, instead
of from the Employees' Compensation Fund. The Presi-
dent may authorize the Governor of the Canal Zone and
the general manager of The Alaska Railroad to pay the
compensation provided by this subchapter, including med-
ical, surgical, and hospital services and supplies under sec-
tion 8103 of this title and the transportation and burial
expenses under sections 8103 and 8134 of this title, from
appropriations for the Canal Zone Government and for
The Alaska Railroad, and these appropriations shall be
reimbursed for the payments by transfer of funds from
the Employees' Compensation Fund.
(c) The President may authorize the Governor of the
Canal Zone to waive, at his discretion, the making of the
claim required by section 8121 of this title in the case of
compensation to- an employee of the Canal Zone Govern-
ment or of the Panama Canal Company for temporary
disability, either total or partial.
(d) When administration is transferred under sub-
section (a) of this section to the general manager of The
Alaska Railroad, the Secretary of Labor is not divested of
jurisdiction and a claimant is entitled to appeal from the
decision of the general manager of The Alaska Railroad to
the Secretary of Labor. The Secretary on receipt of an
appeal shall, or on his own motion may, review the de-
cision of the general manager of The Alaska Railroad,
and in accordance with the facts found on review may
proceed under section 8128 of this title. The Secretary
shall provide the form and manner of taking an appeal.
(e) The same right of appeal exists with respect to claims
lO8Act of Sept. 7, 1916, 39 Stat. 748, 749 (created United States Employees' Compensation Commis-
sion). The administration of the Act was transferred from the Commissioner to the Administrator by
Act of Oct. 14, 1949, 63 Stat. 864, and from the Administrator to the Secretary of Labor by sect. 1,
1950 Iteorg. Plan No. 19, 64 Stat. 1271. The Secretary's Order 18-67, effective July 1, 1967 (32 F.R.
12979), which revalidated and incorporated therein General Order No. 46, designated the Director of
the Bureau of Employees' Compensation as the administrative head of the Bureau in the administration
and functions thereof, such functions to be performed under the general direction and control of the
Assistant Secretary for Labor-Management Relations.
32
PAGENO="0325"
1007
filed by employees of the Canal Zone Government and of
the Panama Canal Company or their dependents in case of
death, as is provided with respect to the claims of other em-
ployees to whom this subchapter applies, under section
8149 of this title. The Employees' Compensation Appeals
Board referred to by section 8149 of this title has juris-
diction, under regulations prescribed by the Secretary,
over appeals relating to claims of the employees or their
dependents. 1 09
SEC. 8146a. COST-OF-LIVING ADJUSTMENT OF COMPEN-
SATION
(a) Each month the Secretary of Labor shall determine
the percent change in the price index. Effective the first
day of the third month which begins after the price index
change equals a rise of at least 3 percent for 3 consecutive
months over the price index for the latest base month,
compensation payable on account of disability or death
which occurred more than 1 year before that first day shall
be increased by the percent rise in the price index (cal-
culated on the highest level of the price index during the
3 consecutive months) adjusted to the nearest one-tenth
of 1 percent.
(b) The monthly compensation after adjustment under
this section shall be fixed at the nearest dollar. However,
the monthly compensation after adjustment shall reflect
an increase of at least $1. 1 1 0
SEC. 8147. EMPLOYEES' COMPENSATION FUND
35(s) (a) There is in the Treasury of the United States the
Employees' Compensation Fund which consists of sums that
Congress, from time to time, may appropriate for or trans-
fer to it, and amounts that otherwise accrue to it under
this subchapter or other statute. The Fund is available with-
out time limit for the payment of compensation and other
benefits and expenses, except administrative expenses,
authorized by this subchapter or any extension or appli-
cation thereof, except as otherwise provided by this sub-
chapter or other statute. The Secretary of Labor shall
submit annually to the Bureau of the Budget estimates of
appropriations necessary for the maintenance of the Fund.
For the purpose of this subsection, "administrative ex-
penses" does not include expenses for legal services per-
formed by or for the Secretary under sections 8131 and
8132 of this title.
35(b) (b) Before August 15 of each year, the Secretary shall
furnish to each agency and instrumentality of the United
States having an employee who is or may be entitled to
compensation benefits under this subchapter or any cx-
`°`Act of Sept .7, 1916, 39 5tat. 750; Act of Apr. 6, 1938, 52 Stat. 200, 201; Act of Aug. 30, 1964,
78 Stat. 666 (added (e) ).
110Act of July 4, 1966, 80 Stat. 256; Act of Sept. 11, 1967, 81 Stat. 212. (Increases provided by this
section not applicable to employee or individual not within the definition of "employee" in section
8101(A), (B), or (D) or a member of the Metropolitan Police or the Fire Department of the District of
Columbia who is pensioned or pensionable under sections 521-525 of title 4, District of Columbia
Code, or a member of a uniformed service.)
33
PAGENO="0326"
1008
tension or application thereof a statement showing the
total cost of benefits and other payments made from the
Employees' Compensation Fund during the preceding
fiscal year on account of the injury or death of employees
-`or individuals under the jurisdiction of the agency or in-
strumentality. Each agency and instrumentality shall in-
clude in its annual budget estimates for the next fiscal year
a request for an appropriation in an amount equal to the
costs. Sums appropriated pursuant to the request shall be
deposited in the Treasury to the credit of the Fund within
30 days after they are available. An agency or instrumen-
tality not dependent on an annual appropriation shall
make the deposit required by this subsection from funds
under its control. If an agency or instrumentality (or part
or function thereof) is transferred to another agency or in-
strumentality, the cost of compensation benefits and other
expenses paid from the Fund on account of the injury or
death of employees of the transferred agency or instru-
mentality (or part or function) shall be included in costs
of the receiving agency or instrumentality.
(c) In addition to the contributions for the maintenance 3s c°~
of the Employees' Compensation Fund required by this
section, a mixed ownership corporation as defined by
section 856 of title 31, or,~ny other corporation or agency
or instrumentality (or activity thereof) which is required
by statute to submit an annual budget pursuant to or as
provided by sections 841-869 of title 31, shall pay an ad-
ditional amount for its fair share of the cost of administra-
tion of this subchapter as determined by the Secretary.
With respect to these corporations, agencies, and instru-
mentalities, the charges billed by the Secretary under this
section shall include an additional amount for these costs,
which shall be paid into the Treasury as miscellaneous
receipts from the sources authorized and in the manner
otherwise provided by this section. 11 1
SEC. 8148. REPEALED. 1 12 33(a)
SEC. 8149. REGULATIONS 32
The Secretary of Labor may prescribe rules and regu-
lations necessary for the administration and enforcement of
this subchapter including rules and regulations for the
conduct of hearings under section 8124 of this title. The
rules and regulations shall provide for an Employees'
Compensation Appeals Board of three individuals desig-
nated or appointed by the Secretary with authority to
hear and, subject to applicable law and the rules and reg-
ulations of the Secretary, make final decisions on appeals
taken from determinations and awards with respect to
claims of employees. In adjudicating claims under section
iliAct of Sept. 7 1916, 39 Stat. 749; Act of 5ept. 12, 1950, 64 Stat. 844; Act of Sept. 13, 1960, 74
Stat. 909; Act of July 4, 1966, 80 Stat. 255 (added last sentence of (a), which applies in case of any re-
covery occurring after July 4, 1966-80 Stat. 257); Act of Sept. 11, 1967, 81 Stat. 213.
ilsAct of Sept. 11, 1967, 81 Stat. 213. (This section required the Secretary to make annual report
to Congress on his work, including detailed statement of appropriations, receipt of and expenditures
from compensation fund, and his recommendations for legislation.)
34
PAGENO="0327"
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8146 of this title, the Secretary may determine the nature
and extent of the proof and evidence required to establish
the right to benefits under this subchapter without regard
to the date of injury or death for which claim is made. 1
SEC. 8150. EFFECT ON OTHER STATUTES
(a) This subchapter does not affect the maritime rights
and remedies of a master or member of the crew of a
vessel. 1 1 4
(b) Section 8141 of this title and section 9441 of title
10 do not confer military or veteran status on any in-
dividual. 1 15
* * * * * * *
Subchapter III
LAW ENFORCEMENT OFFICERS
NOT EMPLOYED BY THE UNITED STATES
SEC. 8191. DETERMINATION OF ELIGIBILITY
The benefits of this subchapter are available as provided in this sub-
chapter to eligible law enforcement officers (referred to in this sub-
chapter as "eligible officers") and their survivors. For th purposes of
this Act, an eligible officer is any person who is determined by the Sec-
retary of Labor in his discretion to have been on any given occasion-
(1) a law enforcement officer and to have been engaged on that
occasion in the apprehension of attempted apprehension of any
person-
(A) for the commission of a crime against the United States;
or
(B) who at that time was sought by a law enforcement
authority of the United States for the commission of a crime
against the United States; or
(C) who at that time was sought as a material witness in
a criminal proceeding instituted by the United States; or
(2) a law enforcement officer and to have been engaged on that
occasion in protecting or guarding a person held for the commission
of a crime against the United States or as a material witness in
connection with such a crime; or
(3) a law enforcement officer and to have been engaged on that
occasion in the lawful prevention of, or lawful attempt to prevent,
the commission of a crime against the United States;
and to have been on that occasion not an employee as defined in
section 8101 (1), and to have sustained on that occasion a personal
injury for which the United States would be required under sub-
chapter I of this chapter to pay compensation if he had been on
that occasion such an employee engaged in the performance of his
duty. No person otherwise eligible to receive a benefit under this
subchapter because of the disability or death of an eligible officer
shall be barred from the receipt of such benefit because the person
`"Act of Sept. 7, 1916, 39 Stat. 749; 1946 Reorg. Plan No. 2, 60 Stat. 1095; Act of July 4, 1966, 80
Stat. 255, 256; Act of Sept. 11, 1967, 81 Stat. 213.
``~Act of Oct. 14, 1949, 63 Stat. 868.
```Act of Aug. 3, 1956, 70 Stat. 981.
35
PAGENO="0328"
1010
apprehended or attempted to be apprehended by such officer was
then sought for the commission of a crime against a sovereignty
other than the United States.
SEC. 8192. BENEFITS
(a) Benefits in event of injury.- The Secretary of Labor shall furnish
to any eligible officer the benefits to which he would have been entitled
under subchapter I of this chapter if, on the occasion giving rise to his
eligibility, he had been an employee as defined in section 8101(1) en-
gaged in the performance of his duty, reduced or adjusted as the Sec-
retary of Labor in his discretion may deem appropriate to reflect com-
parable benefits, if any, received by the officer (or which he would have
been entitled to receive but for this subchapter) by virtue of his actual
employment on that occasion. When an enforcement officer has con-
tributed to a disability compen~ation fund, the reduction of Federal
benefits provided for in this subsection is to be limited to the amount
of the State or local government benefits which bears the same propor-
tion to the full amount of such benefits as the cost or contribution paid
by the State or local government bears to the)cost of disability coverage
for the individual officer.
(b) Benefits in event of death.- The Secretary of Labor shall pay
to any survivor of an eligible officer the difference, as determined by the
Secretary in his discretion, between the benefits to which that survivor
would be entitled if the officer had been an employee as defined in sec-
tion 8101 (1) engaged in the performance of his duty on the occasion
giving rise to his eligibility, and the comparable benefits, if any, received
by the survivor (or which that survivor would have been entitled to
receive but for this subchapter) by virtue of the officer's actual employ-
ment on that occasion. When an enforcement officer has contributed
to a survivor's benefit fund, the reduction of Federal benefits provided
for in this subsection is to be limited to the amount of the State or local
government benefits which bears the same proportion to the full amount
of such benefits as the cost or contribution paid by the State or local
government bears to the cost of survivor's benefits coverage for the in-
dividual officer. 116
SEC. 8193. ADMINISTRATION
(a) Definitions and rules of construction.- For the purpose of this
subchapter-
(1) The term "Attorney General" includes any person to whom
the Attorney General has delegated any function pursuant to sub-
section (b) of this section.
(2) The term "Secretary of Labor" includes any person to whom
the Secretary of Labor has delegated any function pursuant to
subsection (b) of this section.
(b) Delegation.-
(1) The Attorney General may delegate to any division, officer,
or employee of the Department of Justice any function conferred
upon the Attorney General by this subchapter.
(2) The Secretary of Labor may delegate to any bureau, officer,
or employee of the Department of Labor any functions conferred
upon the Secretary of Labor by this subchapter.
(c) Applications.-An application for any benefit under this subchapter
may be made only-
Il6Act of April 19, 1968, PL 90-291, 82 Stat. 98.
36
PAGENO="0329"
1011
(1) to the Secretary of Labor;
(2) by-
(A) any eligible officer or survivor of an eligible officer;
(B) any guardian, personal representative, or other person
legally authorized to act on behalf of an eligible officer, his
estate, or any of his survivors; or
(C) any association of law enforcement officers which is
acting on behalf of an eligible officer or any of his survivors;
(3) within five years after the injury or death; and
(4) in such form as the Secretary of Labor may require.
(d) Consultation with Attorney General and other agencies.- The
Secretary of Labor may refer any application received by him pursuant
to this subchapter to the Attorney General for his assistance, comments
and advice as to any determination required to be made pursuant to
paragraph (1), (2), or (3) of section 8191. To insure that all Federal as-
sistance under this subchapter is carried out in a coordinated manner,
the Secretary of Labor is authorized to request any Federal department
or agency to supply any statiStics, data, or any other materials he deems
necessary to carry out his functions under this subchapter. Each such
department or agency is authorized to cooperate with the Secretary of
Labor and, to the extent permitted by law, to furnish such materials to
him.
(e) Cooperation with State Agencies.- The Secretary of Labor shall
cooperate fully with the appropriate State and local officials, and shall
take all other practicable measure, to assure that the benefits of this
subchapter are made available to eligible officers and their survivors
with a minimum of delay and difficulty.
(f) Appropriations.- There are authorized to be appropriated such
sums as may be necessary to carry out this subchapter. 117
Subchapter IV
SELECTED PORTIONS OF
FEDERAL EMPLOYEES' COMPENSATION ACT AMENDMENTS OF 1966
The Act of July 4, 1966, 80 Stat. 252, in addition to making specific
changes to certain sections of the Act of September 7, 1916, as amended,
contained supplementary general provisions as follows:
INCREASE IN EXISTING AWARDS
SEC. 13. The Secretary of Labor shall determine the per centum rise
in the price index on the basis of the annual average price index f or
calendar year 1958 and the price index for the month during which
this Act is enacted. Effective on the first day of the third month which
begins after the enactment of this Act, compensation payable under
the Federal Employees' Compensation Act on account of disability or
death which occurred more than one year before such first day shall
be increased by the per centum rise determined under the preceding
sentence adjusted to the nearest one-tenth of 1 per centum and rounded
to the nearest dollar, except that such increase shall in no case be less
than $1. For purposes of this section, the term "price index" means
the Consumer Price Index (all items-United States city average)
published monthly by the Bureau of Labor Statistics.
`"Act of April 19, 1968, 82 Stat. 98, 99. (Effective only with respect to personal injuries sustained
on or after date of enactment of Act)
37
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1012
APPLICATION TO MILiTARY PERSONNEL
SEC. 15. Except for benefits provided under section 7 of this Act,
aothing in this or any other Act of Congress shall be construed to make
the increases authorized herein applicable to military personnel or to
any person or employees not within the definition of "employee" in
section 40 (b) (1) or (2) of the Federal Employees' Compensation Act.
However, these amendments shall apply to employees of the govern-
ment of the District of Columbia other than members of the Police
and Fire Departments who are pensioned or pensionable under the
provisions of the Policemen's and Firemen's Retirement and Disabil-
ity Act.
EFFECTIVE DATES
SEC. 16. (a) The amendments made by sections 3, 4, and 5 shall
be applicable to cases of injury or death occurring before or after the
date of enactment only with respect to any period beginning on or
after the first day of the first calendar month following the date of
such enactm.ent.
(b) The amendments made by sections 2, 6, and 11 shall not apply
with respect to any injury sustained before the date of enactment of
this Act.
(c) The amendments made by section 7 (relating to continuation
of benefits on account of surviving children attending school) shall
apply with respect to persons who, on the date of enactment of this
Act, have not reached twenty-three years of age or completed four
years of education beyond the high school level.
(d) The amendments made by section 8 (relating to lump-sum com-
pensation upon remarriage) shall be applicable only with respect to
remarriages occurring after the date of enactment of this Act.
(e) The amendments made by section 9 (relating to the time for
claims) shall be applicable only with respect to injuries occurring after
the date of enactment of this Act.
(f) The amendments made by section 10 (relating to recoveries in
actions against third parties) shall apply in the case of any recovery
occurring after the date of enactment of this Act.
Subchapter V
FEDERAL EMPLOYEES' COMPENSATION ACT AMENDMENTS OF 1960
The Act of September 13, 1960, 74 Stat. 906, in addition to making
specific changes to certain sections of the Act of September 7, 1916,
as amended, contained supplementary general provisions as follows:
INCREASE OF COMPENSATION BASE WHERE INJURY OCCURRED BEFORE
JANUARY 1, 1958
SEC. 104. 118 Notwithstanding any other provision of this Act or the
Federal Employees' Compensation Act, the monthly pay upon the
basis of which compensation for disability or death is computed under
the Federal Employees' Compensation Act shall be increased as fol-
lows: If such employee's injury (or injury causing death) occurred
before January 1, 1958, but after December 31, 1950, such eligible
employee's "monthly pay" shall be increased by 10 percent; if such em-
"Act of October 3, 1961 (75 Stat. 751), made this section applicable to employees of the District of
Columbia, effective October 1, 1960.
38
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1013
ployee's injury (9r injury causing death) occurred before January
1, 1951, but after December 31, 1945, such eligible employee's "monthly
pay" shall be increased by 20 percent; if such employee's injury (or
injury causing death) occurred before January 1, 1946, such eligible
employee's "monthly pay" shall be increased by 30 percent: Provided,
That nothing in this or any other Act of Congress shall be construed to
make the increase in the monthly pay provided by this section appli-
cable to military personnel, or to any person or employee not within
the definition of section 40(b) (1) or (2) of the Federal Employees'
Compensation Act, except that this section shall apply to employees
of the government of the District of Columbia other than members of
the police and fire departments who are pensioned or pensionable under
the provisions of the Policemen and Firemen's Retirement and
Disability Act: Provided further, That this section shall not be con-
strued to permit the amount of compensation on account of an em-
ployee's disability or death to be increased more than 10 percent if such
injury (or injury causing death) occurred before January 1, 1958, but
after December 31, 1950, nor more than 20 percent if such injury (or
injury causing death) occurred before January 1, 1951, but after De-
cember 31, 1945, nor more than 30 percent if such injury (or injury
causing death) occurred prior to January 1, 1946.
EFFECTIVE OPERATION
SEC. 211. (a) Except as otherwise provided by this section or in
this Act, titles I and II of this Act shall take effect on the date of en-
actment of this Act and be applicable to any injury or death occurring
after such date.
(b) The amendments made by sections 101, 102, 201, 203, 204, 208,
and 210 of this Act to sections 5(a), 6(b) (1), 6(b) (2), 6(c), 9(a), 10(k),
13(b), 40(f), and 42 of the Federal Employees' Compensation Act shall
be applicable to eases of injury or death occurring before the date of
enactment of this Act only with respect to any period beginning on or
after the first day of the first calendar month following the date of en-
actment of this Act.
(c) The amendments made by sections 104 and 105 11 of this Act
shall be applicable to cases of injury or death occurring before enact-
ment of this Act only with respect to any period beginning on or after
the first day of the first calendar month following the date of enact-
ment of this Act.
(d) The amendment made by section 202 of this Act to section 7 (a)
of the Federal Employees' Compensation Act permitting the payment
of compensation for scheduled permanent disabilities in addition to
benefits under the Civil Service Retirement Act shall be applicable to
any injury which occurred within three years prior to the date of en-
actment of this Act as well as to any injury occurring on or after the
date of enactment of this Act.
(3) The amendment made by section 202 of this Act to section 7 (a)
of the Federal Employees' Compensation Act requiring an election of
benefits in any case in which a claimant for compensation is also eli-
gible to receive certain payments or benefits from the United States
for the same disability or death shall be applicable to any injury or
death occurring before, on, or after the date of enactment of this Act
"~Section 105 amended the Act of February 15, 1934 extending the Federal Employees' Compensa-
tion Act's provisions to employees of Federal Civil Works Administration by changing $100 in clause
(a) to $150, and $75 in clause (b) to $150 (48 Stat. 351).
39
PAGENO="0332"
1014
but shall not deprive any person of any benefits awarded prior to the
date of enactment of this Act.
Subchapter VI
FEDERAL EMPLOYEES' COMPENSATION ACT AMENDMENTS OF 1949
The Act of October 14, 1949, 63 Stat. 854, in addition to making specif-
ic changes in sections 2 through 43 of the Act of September 7, 1916,
as amended, contained supplemental general provisions as follows:
INCREASE OF COMPUTATION BASE WHERE INJURY OCCURRED BEFORE
JULY 1, 1946
SEC. 109. 120 Notwithstanding any other provision of this Act or of
the Federal Employees' Compensation Act, the monthly pay upon the
basis of which compensation for disability or death is computed under
the Federal Employees' Compensation Act, as amended, shall, effective
on the first day of the first calendar month following enactment of this
Act, be increased by 40 per centum if the injury (or injury causing
death) occurred before May 1, 1943, in the cases of persons employed
in the postal service whose compensation was affected by the Act of
April 9, 1943 (57 Stat. 59), or before January 1, 1941, in all other cases,
or by 10 per centum if the injury (or injury causing death) occurred on
or after such date but before July 1, 1946, except that such increase
shall in no event exceed $50. This section shall apply to any case of death
caused by such an injury, regardless of whether such death occurs or oc-
curred before or after the enactment of this Act.
EXTENSION OF TIME LIMITATIONS
SEC. 301. 1 2 1 (a) Where an individual with respect to whose dis-
ability or death compensation is claimed under the Federal Employees'
Compensation Act, as amended, was injured or died outside the United
States on or after December 7, 1941, and before August 11, 1946, the
time limitations of such Act with respect to the giving of notice of in-
jury and the filing of a claim for compensation shall not begin to run
until the date of enactment of this Act.
(b) As used in this subsection, the term "United States" includes
only the States, Alaska, Hawaii, Puerto Rico, the Virgin Islands, and
the Canal Zone.
COMPROMISE SETTLEMENTS-PRIVATE ACTS
SEC. 302. 1 2 2 The provisions of this Act shall not be construed to au-
thorize the payment of any compensation under the Federal Employees'
Compensation Act in any case where, pursuant to private relief legis-
lation, a beneficiary of such legislation has accepted payment of a grant
in satisfaction of the liability of the United States (or its corporation,
agency, or other instrumentality) in such case, or where such liability
has been compromised and settled, or other satisfaction received, as the
result of any action sounding in tort or under maritime law, or where a
lump sum has been received under section 14 of the Federal Employees'
12063 Stat. 861.
12163 Stat. 866.
`225ee note 121 aupra.
40
PAGENO="0333"
1015
Compensation Act and the lump-sum award is not modified or set aside
for other reasons.
EFFECTIVE OPERATION
SEC. 303. (a) Except as otherwise provided by this section or in
this Act, titles I and II of this Act shall take effect on the date of en-
actment of this Act and be applicable to any injury or death occurring
before or after such date.
(b) The amendments made by section 101 of this Act to sections 2
and 8 of the Federal Employees' Compensation Act shall not apply to
any period of disability commencing before the enactment of this Act.
(c) The amendments made by sections 102, 103, 105, and 106 of
this Act to sections 3, 4(a), 6, 10, and 39 of the Federal Employees'
Compensation Act shall be applicable to cases of injury or death occur-
ring before enactment of this Act only with respect to any period be-
ginning on or after the first day of the first calendar month following
the enactment of this Act.
(d) (1) The amendments made by section 104 of this Act to sec-
tion 5 of the Federal Employees' Compensation Act, establishing special
provisions for permanent disability involving the loss, or loss of use, of a
member or function of the body, shall (A) in cases within the purview
of section 5(b) or in cases of disfigurement apply retroactively to any
case where the injury occurred on or after January 1, 1940, and (B) in
other cases, apply retroactively to injuries which occurred within one
year prior to the enactment of this Act: Provided, That where the injury
occurred before such enactment, except in cases specified in subsection
(b) of section 5 of such Act, as so amended, the injured employee shall
not be entitled to compensation under the schedule unless within one
year after such date of enactment he elects to receive compensation
under the schedule if so entitled: Provided further, That in the event
of such election, all amounts theretofore paid on the basis of loss of
wage-earning capacity as compensation for permanent disability in-
volving a loss, or loss of use, of a member or function, or disfigurement,
as specified in the schedule shall be credited against any compensation
awarded by reason of such amendment: And provided further, That any
award made under the provisions of this subsection shall be payable pros-
pectively in the same manner as though the injury occurred after the
enactment of this Act.
(2) No payment upon death pursuant to section 5(d) of the Federal
Employees' Compensation Act, as amended by this Act, shall be made
unless death occurs after such enactment.. In the event of such death,
the election required by paragraph (1) of this subsection shall be deemed
to have been made.
(e) Section 107 of this Act, amending section 11 of the Federal Em-
ployees' Compensation Act, shall apply only to deaths occurring after
the enactment of this Act.
(f) (1) The amendments made by section 108 of this Act to the de-
finition of the term "employee" contained in section 40 of the Federal
Employees' Compensation Act shall, as to any case of injury or death
occurring before the date of enactment of this Act, apply only to injuries
or deaths occurring on or after December 7, 1941, and compensation
(including medical or other benefits) in any such case shall not be paid
for any period earlier than the first day of the first month following
enactment of this Act and, in cases of disability caused by such an in-
41
75-623 0 - 74 - pt. 3 - 22
PAGENO="0334"
1016
jury, shall be limited to compensation for permanent partial or perm-
anent total disability.
(2) The time limitations of the Federal Employees' Compensation
Act with respect to the giving of notice of injury and the filing of a
claim for compensation, in any case brought within the purview of
section 40 of such Act by this Act, shall not begin to run until the date
of enactment of this Act.
(g) The amendment made by section 201 of this Act to section 7
of the Federal Employees' Compensation Act, making the remedy
and liability under such Act exclusive except as to masters or mern-
bers of the crew of any vessel, shall apply to any case of injury or death
occurring prior to the date of enactment of this Act: Provided, however,
That any person who has commenced a civil action or an action in ad-
miralty with respect to such injury or death prior to such date, shall
have the right at his election to continue such action notwithstanding
any provision of this Act to the contrary, or to discontinue such action
within six months after such date before final judgment and file claim
for compensation under the Federal Employees' Compensation Act,
as amended, within the time limited by sections 15 to 20 of such Act
(including any extension of such time limitations by any provision of
this Act), or within one year after enactment of this Act, whichever is
later. If any such action is not discontinued and is decided adversely to
the claimant on the ground that the remedy or liability under the Fed-
eral Employees' Compensation Act is exclusive, or on jurisdictional
grounds, or for insufficiency of the pleadings, the claimant shall, within
the time limited by sections 15 to 20 of such Act (including any extension
of such time limitations by any provision of this Act), or within one
year after final determination of such cause, whichever is later, be en-
titled to file a claim under such Act.
(h) The amendments made by sections 203 and 204 of this Act to
sections 12 and 13 of the Federal Employees' Compensation Act, per-
taining to the determination of the employee's pay or his wage-earning
capacity, may, in the interest of justice and in the discretion of the
Secretary, be applied in any case, irrespective of the date of injury or
death, so as to cause payments of compensation, with respect to any
period not earlier than the first day of the first month after enactment
of this Act, to be consistent with such amendments.
TIME LIMITATIONS NOT EXTENDED
SEC. 304. 123 Except as otherwise expressly provided, the enactment
of this Act shall not suspend or defer the ,running of the time limita-
tions of the Federal Employees' Compensation Act with respect to
the giving of notice of injury and filing of a claim for compensation.
SEAMEN
SEC. 305. (a) Nothing contained in this Act shall be construed to
affect the exclusion of certain seamen (as defined in the Act of March
24, 1943, ch. 26, 57 Stat. 45, as amended; 50 U.S.C., Appendix, sec.
1291) from the terms of the Federal Employees' Compensation Act,
as provided by such Act of March 24, 1943, as amended.
(b) 1 2 Nothing contained in this Act shall be construed to affect
any maritime rights and remedies of a master or member of the crew
of any vessel.
12363 5tat. 866.
12463 5tat. 868.
42
PAGENO="0335"
1017
Subchapter VII
EXTENSION OF ACT OF SEPTEMBER 7, 1916, AS AMENDED
EMPLOYEES OF THE TENNESSEE VALLEY AUTHORITY
1 2 ~Insofar as applicable, the benefits of the Act entitled "An Act
to provide compensation for employees of the United States suffering
injuries while in the performance of their duties, and for other pur-
poses," approved September 7, 1916, as amended, shall extend to per-
sons given employment under the provisions of this Act.
EMPLOYEES OF THE VIRGIN ISLANDS CORPORATION
1 2 6The Corporation shall also after June 30, 1949, contribute to the
Employees' Compensation Fund, on the basis of annual billings as
determined by the Federal Security Administrator for the benefit pay-
ments made from such fund on account of the Corporation's employees.
(This Act also provides for payment by the Corporation of the admini~-
trative costs.)
EMPLOYEES OF THE PUBLIC HOUSING ADMINISTRATION
12 ~The benefits of the Act entitled "An Act to provide compensation
for employees of United States suffering injuries while in the perform-
ance of their duties, and for other purposes" (39 Stat. 742), shall ex-
tend to officers and employees of the Administration.
EMPLOYEES OF THE SMALL BUSINESS ADMINISTRATION
1 2 `The Administrator shall contribute to the Employees' Compensa-
tion Fund, on the basis of annual billings as determined by the Secre-
tary of Labor, for the benefit payments made from such fund on account
of employees engaged in carrying out functions financed by the revolving
fund established by section 4(c) of this Act (72 Stat. 385). (This Act
also provides for payment by the Corporation of the administrative costs.)
EMPLOYEES OF THE SAINT LAWRENCE SEAWAY DEVELOPMENT
CORPORATION
12 `The Corporation shall also contribute to the Employees' Com-
pensation Fund, on the basis of annual billings as determined by the
Secretary of Labor, for the benefit payments made from such fund on
account of the Corporation's employees. (This Act also provides for
payment by the Corporation of the administrative costs.)
EMPLOYEES OF THE DEVELOPMENT LOAN FUND
13 `The Fund shall also contribute at least quarterly from such ap-
propriation or fund, to the Employees' Compensation Fund, the amount
l2lAct of May 18, 1933, 48 Stat. 59; 16 USC 831 (b)
`"Act of June 30, 1949, 63 Stat. 350; 48 USC 1407f (c). See 5 USC 8147.
l27Act of Sept. 1, 1937, 50 Stat. 897; 42 USC 1416 (4).
"Act of July 18, 1958, 72 Stat. 387; 15 USC 635(b); See 5 USC 8147; 15 USC 633(c).
l2lAct of May 13, 1954, 68 Stat. 95; 33 USC 987(b); See 5 USC 8147.
isOAct of June 30, 1958, 72 Stat. 265; 22 USC 1875(d); See 5 USC 8147.
43
PAGENO="0336"
1018
determined by the Secretary of Labor to be the full cost of the benefits
and other payments made from such fund on account of injuries and
deaths of its employees which may hereafter occur. (This Act also pro-
vides for payment by the Fund of the administrative costs.)
13 EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE Ac'r
SEC. 4(a). * * * Any employee serving under a Federal appointment
not limited to one year or less who transfers to an international organi-
zation is entitled to the following, if the transfer is made with the con-
sent of the head of his agency * *
* * * * * * *
(3) To retain coverage and all rights and benefits under the Fed-
eral Employees' Compensation Act, as amended, and for this pur-
pose his employment with the international organization shall be deemed
to be employment by the United States. However, in any case in which
the injured employee, or his dependents in case of death, receives from
the international organization any payment (including any allowance,
gratuity, payment under an insurance policy for which the premium is
wholly paid by that organization, or other benefit of any kind, on account
of the same injury or death, the amount of such payments shall be credited
against any benefits payable under the Federal Employees' Compensation
Act as follows: (A) payments on account of injury or disability shall be
credited against disability compensation payable to the injured employee;
and (B) payments on account of death shall be credited against death
compensation payable to dependents of the deceased employee * *
FEDERAL STUDENT NURSES-TERMINATION OF BENEFITS
The Act of March 4, 1944 (c. 83, 58 Stat. 111), which amended the
Act of June 15, 1943 (c. 126, 57 Stat. 153), extended the benefits of
the Federal Employees' Compensation Act, as amended, to student
nurses in training at Federal hospitals for the Armed Forces, health
agencies, and war industries. Under the provisions of section 10 of the
Act of June 15, 1943, coverage terminated on the termination of hos-
tilities of World War II, proclaimed at 12 o'clock noon on December 31,
1946, by Proc. No. 2714 (12 F.R. 1).
EMPLOYEES OF MIDSHIPMEN'S STORES, ETC., AT U.S. NAVAL ACADEMY
Subsequent to December 28, 1945, all employees of midshipmen's
stores, tailor, cobbler and barber shops are deemed Government em-
ployees whether paid prior to December 28, 1945 from appropriated
moneys or from receipts of the midshipmen's, tailor, cobbler, and barber
shops. 13 2
Subsequent to August 5, 1939 all employees of the U.S. Naval Acad-
emy laundry are deemed Government employees whether paid from
appropriated moneys or from receipts of the laundry. 1
lS1Act of Aug. 28, 1958, 72 Stat. 959, 960.
13'Paraphrased from Act of Dec. 3, 1945, 59 Stat. 590; 59 Stat. 660. Omitted from the revision and
recodification of title 10 USC (70 5tat. 1).
`33Paraphrased from Act of Aug. 5, 1939, 53 Stat. 1210. Omitted from the revision and recodification
of title 10 USC, 70A Stat. 1.
44
PAGENO="0337"
1019
FEDERAL LAND BANK-TERMINATION OF BENEFITS
`~ ~The Federal Employees' Compensation Act, as amended, shall
not be applicable in respect to the injury, disability, or death of any
employee of a Federal land bank, Federal intermediate credit bank,
or bank for cooperatives unless such injury, disability, or death (or
cause thereof) occurred before January 1, 1960.
IV. MILITARY EXTENSIONS (INCLUDING R.O.T.C., C.A.P., AND P.H.S.)
MEMBERS OF RESERVE COMPONENTS, ARMY, NAVY, AIR FORCE, AND
COAST GUARD
The extension of the Federal Employees' Compensation Act benefits
to reservists of the Armed Forces was terminated effective on or after
January 1, 1957 by Public Law 881, 81st Congress (c. 837, 70 Stat. 857,
et seq.), approved August 1, 1956. `~ It also discontinued such coverage
for commissioned officers of the regular and reserve corps of the Public
Health Service and commissioned officers of the Coast and Geodetic
Survey 1 3 6 by the amendment of section 40 of the Federal Employees'
Compensation Act. The termination of coverage does not deprive
any person of benefits such person was eligible to receive by reason of
disability or death occurring prior to January 1, 1957. ``~ Beneficiaries
eligible for compensation for death occurring prior to January 1, 1957,
may continue to receive benefits under the Federal Employees' Com-
pensation Act or they can elect to receive benefits under Public Law
881. In the event they elect to receive benefits under Public Law 881,
their right to future compensation under the Federal Employees' Com-
pensation Act ceases and may not be reinstated. 138
Since the termination of coverage by Public Law 881 does not pre-
vent payment of compensation for disability or death occurring prior
to January 1, 1957, the following statutes pertaining to such coverage
of members of the individual reserve components are set forth and,
in addition, the former coverage provisions for various auxiliary corps.
OFFICERS AND ENLISTED RESERVE CORPS, ARMY
(INCLUDING AIR FORCE)
`~`The Act of July 15, 1939, 53 Stat. 1042; 5 USC 797, provided as
follows:
"That if in time of peace any member of the Officers' Reserve Corps
or of the Enlisted Reserve Corps of the Army is physically injured in
`3~Act of Aug. 18, 1959, 73 Stat. 384, 388; 12 USC 6401 (c).
"Sec. 208 of the Act of Aug. 1, 1956, 70 Stat. 866, provides, in part, that no person eligible for
benefits under title II of said Act "by reason of any death occurring on or after January 1, 1957, shall be
eligible by reason of such death * * * for any payments under the Federal Employees' Compensation
Act." This provision, together with subsection 501 (f), 70 Stat. 883, amending the Naval Reserve Act of
1938, 52 Stat. 811, and subsections 502(5) and 502(6), 70 5tat. 886, repealing the Acts of July 15, 1939,
53 Stat. 1042, and July 18, 1940, 54 Stat. 762, granting Federal Employees' Compensation Act coverage
to Army and Air Force reservists and to certain reservists who suffered injury prior to July 15, 1939,
operates to prevent payments of compensation under the Federal Employees' Compensation Act for
death or disability of any member of a Reserve component occurring on or after Jan. 1, 1957.
See note 145, infra, for temporary Coast Guard Reserve members.
"Act of Aug. 1, 1956, 70 Stat. 882.
"Act of Aug. 1, 1956, 70 Stat. 887, provides as follows: The amendment or repeal of any provision
of law by this Act shall not operate to deprive any person of payments of the six-months' death gratuity
or of any payments which such person would be eligible to receive, but for such amendment or repeal,
by reason of the death or disability of any person occurring prior to Jan. 1, 1957; nor shall the amend-
ment or repeal of any such provision operate to deprive any person disabled prior to Jan. 1, 1957, of any
right or the continuation of benefits to which he would otherwise be entitled by reason of such disability
except for such amendment or repeal.
"`See sec. 206, Act of Aug. 1, 1956, 70 Stat. 865. Subsections (c), (d), and (e) set forth the limitations
upon payment where there is more than one beneficiary and all the said beneficiaries do not apply for
benefits under the Act.
"Repealed, effective Jan. 1, 1957, 70 Stat. 886. Coverage terminated for disability or death subse-
quent to Jan. 1, 1957.
45
PAGENO="0338"
1020
line of duty (1) while on active duty, or (2) when engaged in authorized
travel to and from such duty, or (3) when engaged in authorized t.raining
without pay, or dies as the result of such physical injury, he or his bene-
ficiary shall be entitled to all the benefits prescribed by law for civil em-
ployees of the United States who are physica]ly injured in line of duty
or who died as a result thereof, and the United States Employees' Com-
pensation Commission shall have jurisdiction in such cases and shall
perform the same duties with reference thereto as in the cases of civil
employees of the United States so injured: Provided, That the benefits
shall accrue to any such member, or his beneficiary, whether the dis-
ability or death is the result of sickness or disease contracted in line of
duty while on active duty when such sickness or disease is proximately
caused by service on active duty: Provided further, That employees'
compensation under this Act shall not be paid concurrently with active-
duty pay or pension based upon military service, and in the event a
person becomes eligible for the benefits of the United States Employees'
Compensation Act and is also eligible for, or is in receipt of, a pension
based upon military service, he shall elect which benefit to receive:
Provided further, That authorized training without pay is defined as
inactive-status training under written authorization by competent mil-
itary authority covering a specific training assignment and prescribing
a time limit: Provided further, That for the purpose of determining the
benefits to which entitled under the provisions of this Act members of
the Officers' Reserve Corps or of the Enlisted Reserve Corps of the Army
physically injured when engaged in authorized training without pay
will be held and considered as receiving the pay and allowances they
would have received if in a pay status: Provided further, That Reserve
Officers entitled to the benefits of the last proviso of section 5 of the Act
of April 3, 1939 (Public, Numbered 18, Seventy-sixth Congress), shall
not be entitled to the benefits of this Act: And provided further, That
nothing herein shall be construed to authorize compensation benefits
for any period prior to the approval of this Act."
The Act of August 7, 1946, 60 Stat. 893, defined the term "in time
of peace," supra, to include the period after September 8, 1945 which is
prior to the first day on which the United States is, by the action of
Congress or the President, or both, no longer engaged in any war in
which the United States is engaged on August 7, 1946.
SAME (INcLUDING AIR FORCE)
Sections 2, 4, and 5 of the Act of June 20, 1949, 63 Stat. 201 provided:
"SEC. 2. * * ~. That all officers, warrant officers, and enlisted men of
the Army of the United States, or the Air Force of the United States,
other than the officers and enlisted men of the Regular Army, or the
Regular Air Force who-
"(1) if called or ordered into the active military service by the
Federal Government for extended military service in excess of
thirty days suffer disability or death in line of duty from disease
while so employed; or
"(2) if called or ordered by the Federal Government to active
military service or to perform active duty for training or inactive-
duty training for any period of time, suffer disability or death in
line of duty from injury while so employed,
shall be deemed to have been in the active military service during such
46
PAGENO="0339"
- 1021
period and shall be in all respects entitled to receive the same pen-
sions, compensation, death gratuity, retirement pay, hospital bene-
fits, and pay and allowances as are now or may hereafter be pro-
vided by law or regulation for officers and enlisted men of cor-
responding grades and length of service of the Regular Army or the
Regular Air Force. * * *
"SEC. 4. The provisions of this Act shall he effective from August 14,
1945, but no back pay, pension, compensation, death gratuity, or re-
tirement pay shall be held to have accrued as the result of the enact-
ment of this Act for any period prior to such date: Provided, That in the
case of persons electing to receive the benefits of this Act, the amount of
any monetary benefits received for any period subsequent to August 14,
1945, under any provisions of law providing benefits for disability or
death incident to the service described in sections 1, 2, and 3 of this
Act, shall be deducted from the monetary benefits provided for herein.
"SEC. 5. Nothing contained in this Act shall he construed to deprive
any person of any benefits to which he was entitled prior to its enact-
ment."
SAME; PROVISIONS APPLICABLE TO INJURIES BETWEEN FEBRUARY 28, 1925,
AND JULY 15, 1939
The Act of July 18, 1940, 54 Stat. 762 provided:
"That where in time of peace any member of the Officers' Reserve
Corps or of the Enlisted Reserve Corps of the Army was physically
injured in line of duty (1) while on active duty, ~ (2) while engaged
in authorized travel to and from such duty, or (3) while engaged iii
authorized training without pay, or dies or has died as the result of
such physical injury, where such injury or death occurred between
the dates of February 2~, 1925, and July 15, 1939, both inclusive, when
such injury or death re~u1ts from an accident involving-a military hazard
such as flying in military aircraft, participation in military drills, target
practice and tactical exercises, and in injury cases where such injury has
resulted in permanent partial or permanent total disability, he or his
beneficiary shall be entitled to all the benefits prescribed by law for civil
employees of the United States who are physically injured in line of
duty or who die as a result thereof, and the United States Employees'
Compensation Commission shall have jurisdiction in such cases and
shall perform the same duties with reference thereto as in the cases of
civil employees of the United States so injured: Provided, That the bene-
fits shall accrue to any such member, or his beneficiary, whether the
disability or death is the result of sickness or disease contracted in line
of duty while on active duty when such sickness or disease is proxi-
mately caused by service on active duty: Provided ftirt her, That employees'
compensation under this Act shall not be paid concurrently with active-
duty pay or pension based upon military service, and in the event a
person becomes eligible for the benefits of the United States Employees'
Compensation Act and is also eligible for, or is in receipt of, a pension
based upon military service, he shall elect which benefit to receive: Pro-
vided further, That authorized training without pay is defined as inactive-
status training under written authorization by competent military
authority covering a specific training assignment and prescribing a
time limit: Provided farther, That for the purpose of determining bene-
fits to which entitled under the provision of this Act members of the
47
PAGENO="0340"
1022
Officers' Reserve Corps or of the Enlisted Reserve Corps of the Army
physically injured when engaged in authorized training without pay
will be held and considered as receiving the pay and allowances they
would have received if in a pay status: And provided further, That nothing
herein shall be construed to authorize compensation benefits which may
have accrued for any period prior to the approval of this Act, but eli-
gibility for compensation benefits shall be determined as of the date of
approval of this Act and any benefits payable shall date only from such
approval and the eight-year period of limitation in section 1O-G of the
Federal Employees' Compensation Act of September 7, 1916, shall be
computed for purposes of this Act, from the date of approval thereof.
"Where injury or death has been sustained by any member of the
Officers' Reserve Corps or Enlisted Reserve Corps while performing
authorized training without pay upon inactive status it shall be pre-
sumed that such training was being performed under written authori-
zation of competent military authority covering a specific training
assignment and prescribing a time limit and thus subject to the pro-
vision of this Act unless a duly appointed Examining Board, appointed
at the time of said accident, has found and reported to the contrary.
"All claims for disability or death benefits allowed under the pro-
visions of this Act shall be made within one year from its approval by
the President."
NATIONAL GUARD OFFICERS ON ACTIVE DUTY
Based upon sec. 515(b) of the Officer Personnel Act of 1947, 61
Stat. 908 (now 10 USC 3491, 8491), making officers of all Reserve com-
ponents of the Army and Air Force eligible for compensation benefits,
officers of the National Guard on extended active duty have been held
entitled to compensation.
The Act of Sept. 14, 1961, 75 Stat. 507, provides:
"That sections 15 through 20, inclusive, of the Federal Employees'
Compensation Act, as amended (U.S.C. title 5, secs. 765-770), are
hereby waived with respect to cases involving those members of the
Army National Guard and the Air National Guard of the United States
alleged to have suffered disability or death from compensable causes
which arose during the period from August 7, 1947, to December 31,
1956, inclusive, and their claims or the claims of their dependents for
compensation by reason of the Act of July 15, 1939 (5 U.S.C. 797, 797a),
are authorized and directed to be considered and acted upon under the
remaining provisions of the Federal Employees' Compensation Act,
as amended and extended to members of military reserve components,
if filed with the Department of Labor (Bureau of Employees' Compen-
sation) within one year from the date of enactment of this Act.
"SEc. 2. Notwithstanding the provisions of section 206(h) (1) of the
Servicemen's and Veterans' Survivor Benefits Act any person whose
rights may be affected by section 1 of this Act may receive any benefits
to which he should be found eligible under the Federal Employees'
Compensation Act provided he makes the election required under sec-
tion 7 thereof. In the event of such au election, any benefit amounts
received under any other Act for the same death shall be deducted from
amounts payable for similar purposes under the Federal Employees'
Compensation Act."
48
PAGENO="0341"
1023
WOMEN'S ARMY AUXILIARY CORPS
Section 11 of the Act of May 14, 1942, 56 Stat. 280, provided:
~~14 elf any member of the corps is physically injured or otherwise
incapacitated in line of duty while on active duty, while engaged in
authorized training without pay or while engaged in authorized travel
with or without pay, or if any member dies as result of such physical
injury or other incapacity, she or her beneficiary shall be entitled to
the benefits prescribed by law for civilian employees of the United States
who are physically injured while in the performance of duty or who die
as a result thereof, and the United States Employees' Compensation
Commission shall have jurisdiction in such cases and shall perform the
same duties with reference thereto as in the cases of other civilian em-
ployees of the United States so injured or otherwise incapacitated:
Provided, That the benefits shall accrue to any such member or her bene-
ficiary whether the disability or death is the result of sickness or disease
contracted in line of duty, while on active duty, when such sickness or
disease is proximately caused by service on active duty: Provided further,
That employees' compensation under this Act shall not be paid concur-
rently with active-duty pay or pension based upon active service: And
provided further, That for the purpose of determining the benefits to
which they are entitled under the provisions of this Act, members of the
corps physically injured or otherwise incapacitated when engaged in
authorized training without pay will be held and considered as receiving
the pay and allowances they would have received if in a pay status.
"The Secretary, under such regulations as he may prescribe, may
authorize and require the hospitalization, medical and surgical treat-
ment, and domiciliary care so long as any or all are necessary of mem-
bers of the corps injured as hereinabove set out and the Secretary is
authorized to incur obligations with respect thereto without reference
to their line of duty status: Provided, That this shall not apply to mem-
bers of the corps who are treated in private hospitals or by civilian
physicians while on furloughs or leaves of absence in excess of twenty-
four hours. Members of the corps who suffer injury or contract dis-
ease in line of duty while on active duty or while engaged in authorized
training without pay shall, under such regulations as the Secretary may
prescribe, be entitled at Government expense to such hospitalization,
rehospitalization, medical and surgical care in hospital and at their
homes as is necessary for the appropriate treatment of such injury or
disease until discharged from service, released from active duty, or
released from authorized training without pay and during such time
the period of such hospitalization or rehospitalization, but not for more
than an aggregate of six months after the termination of service if on
active duty with pay, to the pay and allowances, whether in money
or in kind, that they were entitled to receive at the time such injury was
suffered or disease contracted and to the necessary transportation in-
cident to such hospitalization, rehospitalization, and return to their
homes when discharged from hospital and such pay and allowances
shall be in lieu of monthly compensation payable under the first para-
`4°NOTE.-Effective the last day of the second calendar month following July 1, 1943, repeal of the
Act of May 14, 1942, became effective, except sec. 11 above set forth. The Act of July 1, 1943, 57 Stat.
371, established a new Women's Army Corps; sec. 11, Above set forth, was specifically not made ap-
plicable to members of the new women's Army Corps. Effective July 1, 1948, the Act of May 14, 1942,
was repealed by Act of July 25, 1947, 61 Stat. 449. The Act of Oct. 14, 1949, 63 Stat. 854, amended sect.
2(a) of the Act of July 25, 1947 by striking out the semicolon at the end of the provision repealing the
Act of July 1, 1943, 57 Stat. 371, and the Act of May 14, 1942, 56 Stat. 278, as amended, and inserting
in lieu thereof a colon and the follosving proviso; `Provided, That section 11 of such Act of May 14, 1942,
shall remain in effect to the extent specified in section 5 of such Act of July 1, 1943."
49
PAGENO="0342"
1024
graph of this section, during the period covered thereby; and for any
period of hospitalization or rehospitalization when they are not en-
titled to pay and allowances under the preceding provision they shall
be entitled to subsistence at Government expense. In the event any
member of the corps dies during her period of enlistment or appoint-
ment, the necessary expense for the recovery of the body, its prepara-
tion for burial, including the use of such of the uniform and articles of
clothing issued to her as may be required, interment or cremation, and
transportation of remains, including round-trip transportation and
subsistence of an escort to her home or the place where she received
orders or enrolled or was appointed, or to such other place as her rela-
tives may designate provided the distance to such other place be not
greater than the distance to her home, shall be paid by the United States:
Provided, further, That if the death of the member occurs as a result
of any injury in line of duty while on active duty, while engaged in
authorized training without pay, or while engaged in authorized travel
with or without pay, and while such member is entitled to receive the
benefits of the Act of September 7, 1916, the funeral and burial expenses
shall be provided by the United States Employees' Compensation Com-
mission under the provisions of section 11 of the Act of September 7,
1916, as amended (5 U.S.C. 761), and in addition to the authority
contained in that section, the Commission may embalm and transport
the body, in a hermetically sealed casket if necessary, to the home of
the member."
MEMBERS OF NAVAL RESERVE
The Act of June 25, 1938, 52 Stat. 1181, provided:
"`a `If in time of peace any member of the Naval Reserve is physically
injured in the line of duty while performing active military or naval
service, or dies as the result of such physical injury, he or his bene-
ficiaries shall be entitled to all the benefits prescribed by law for civil
employees of the United States who are physically injured in the line
of duty or who die as a result thereof, and the United States Employees'
Compensation Commission shall have jurisdiction in such cases and
shall perform the same duties with reference thereto as in the cases of
civil employees of the United States so disabled: Provided, That where
a person who is eligible for the benefits prescribed by this section is also
eligible for pension under the provisions of the Act of June 23, 1937,
entitled "An Act to amend the provisions of the pension laws for peace-
time service to include Reserve officers and members of the enlisted
Reserves" (50 Stat. 305), he shall elect which benefit he shall receive,
and for the purposes of this section and of said Act all members of the
Naval Reserve shall be considered as performing active military or
naval service while performing active duty with or without pay, train-
ing duty with or without pay, drills, equivalent instruction or duty,
appropriate duty, or other prescribed duty, or while performing auth-
orized travel to or from such duties: Provided further, That for the
purpose of determining the benefits to which entitled under the pro-
visions of this section Naval Reservists so physically injured while
performing the foregoing duties in a nonpay status will be held and
"1Amended Aug. 7, 1946, 60 Stat. 892, by adding proviso beginning with words `That any member,"
effective retroactively to Dec 1, 1945. See sec. 1, Act of June 20, 1949, 63 Stat. 201, for its effect upon
the Act of June 25, 1938.
50
PAGENO="0343"
1025
considered as receiving the pay and allowance they would have received
if in a pay status: Provided further, That Naval Reservists who become
ill or contract disease in line of duty during the performance of active
duty or training duty with or without pay shall be entitled, at Gov-
ernment expense, to such medical, hospital, or other treatment as is
necessary for the appropriate treatment of such illness or disease until
the disability resulting from such illness or disease cannot be materially
improved by hospitalization or treatment, and to the necessary trans-
portation and subsistence incident to such medical and hospital treat-
ment and return to their homes when discharged therefrom: Provided
further, That no treatment or hospitalization for such illness or disease
shall be continued for more than ten weeks following discharge from
active or training duty except on the approved recommendation of a
board of medical survey, consisting of one or more medical officers of
the Navy or on authorization of the Surgeon General of the Navy
based on the certificate of a reputable physician that the illness or
disease is a continuation of the illness or disease which was sustained
or contracted during the period of active or training duty and that
further benefit will result from continued treatment: Provided fur-
ther, 14 2 That any member of the Naval Reserve performing active duty
with or without pay for periods of thirty days or less, training duty
with or without pay, dri]ls, equivalent instruction or duty, appropriate
duty, or prescribed duty, or while performing authorized travel to or
from such duties, prior to the official termination of World War II,
shall be entitled to all the benefits provided by this section to members
of the Naval Reserve in time of peace: And provided further, That in
no case shall sickness or disease be regarded as an injury within the
meaning of this section relating to the Naval Reserve."
SAME; ELECTION OF BENEFITS
Section 1 of the Act of June 20, 1949, 63 Stat. 201, provided:
"~ * * All officers, nurses, warrant officers, and enlisted men of the
United States Naval Reserve or United States Marine Corps Reserve,
who-
"(1) if called or ordered into active naval or military service
by the Federal Government for extended naval or military service
in excess of thirty days, suffer disability or death in line of duty
from disease while so employed; or
"(2) if called or ordered by the Federal Government to active
naval or military service or to perform active duty for training
or inactive-duty training for any period of time, suffer disability
or death in line of duty from injury while so employed;
shall be deemed to have been in the active naval service during such
period, and they or their beneficiaries shall be in all respects entitled
to receive the same pensions, compensation, death gratuity, retire-
ment pay, hospital benefits, and pay and allowances as are now or
may hereafter be provided by law or regulation for officers, warrant
officers, nurses, and enlisted men of corresponding grades and length
of service of the Regular Navy or Marine Corps: Provided, That if
a person who is eligible for the benefits prescribed by this Act be
also eligible for pension under the provisions of the Act of June 23,
142This proviso is added by the Act of Aug. 7, 1946, cited in note 141, page 50. For retroactive date,
see same note.
51
PAGENO="0344"
1026
1937 (50 Stat. 305), compensation from the Bureau of Employees'
Compensation, Federal Security Agency, under the provisions of
section 304 of the Naval Reserve Act of 1938 (52 Stat. 1181) or
retired pay under the provision of section 310 of the Naval Reserve
Act of 1938 (52 Stat. 1183), he shall elect which benefit he shall
receive."
WOMEN'S RESERVE (NAVY)
The Act of July 30, 1942, 56 Stat. 730, provided:
"`~ `The benefits provided by section 4 of the Act approved August
27, 1940 (Public, Numbered 775, Seventy-sixth Congress), and by the
Act approved March 17, 1941 (Public Law Numbered 16, Seventy-
seventh Congress), shall not be applicable to members of the Women's
Reserve who suffer disability or death in line of duty from disease or
injury while employed on active duty: Provided, That if any member
of the Women's Reserve suffers disability or death from disease or in-
jury incurred in line of duty while employed on active duty, she or her
beneficiaries shall be entitled to all the benefits prescribed by law for
civil employees of the United States who are physically injured or who
die as a result thereof."
COAST GUARD RESERVE AND AUXILIARY
REGULAR MEMBERS
The Act of May 19, 1941, 55 Stat. 12, provided:
"`i ~Members of the Reserve, other than temporary members thereof,
who suffer sickness, disease, disability, or death in line of duty shall
be entitled to the same benefits as are or may hereafter be prescribed
by law for members of the Naval Reserve who suffer sickness, disease,
disability, or death under similar conditions."
TEMPORARY MEMBERS OF COAST GUARD RESERVE
`~ `(a) In case of physical injury, or death resulting from physical
injury, to any temporary member of the Reserve incurred incident
to service while performing active Coast Guard duty, or engaged in
authorized travel to or from such duty, the provisions of law author-
"Effective July 30, 1942, benefits applicable to the Women's Reserve were made the same as for
male officers and enlisted men by amendment of Nov. 8, 1943, 57 Stat. 586. By Act of June 12, 1948,
62 Stat. 368, the Women's Reserve was transferred to the Naval Reserve. Equal applicability of bene-
fit provisions was retained; and a similar benefit provision was provided by Act of July 9, 1952, 66 Stat.
500. The Act of Aug. 10, 1956, 70A Stat. 641, in recodifying title 10 USC, repealed the Acts of June
12, 1948 and July 9, 1952. As noted hereinbefore, death or disability of Naval Reserve Corps members
occurring subsequent to Jan. 1, 1957, are no longer covered by the Act of Aug. 1, 1956, sees. 501 (f), 603(b),
70 Stat. 883, 887.
1"See Act of Aug. 4, 1949, 63 Stat. 551, revising 14 USC 755(c). The Act of Aug. 1, 1956, 70 Stat.
857, affects Coast Guard Reservists in the same fashion as Naval Reservists. See note 143, supra.
"Section based on Act of Feb. 19, 1941, 55 Stat. 12, as amended by Acts of Nov. 23, 1942, 56 Stat.
1021, and Sept. 30, 1944, 58 Stat. 756. Title 14 USC was revised and reenacted Aug. 4, 1949, 63 Stat.
495. The revision removed that portion of sec. 760 relating to the Coast Guard Auxiliary and made
minor changes in phraseology. A time limitation provision deemed obsolete was also deleted by the re-
vision. Act of Oct. 31, 1951, 65 Stat. 715, made minor changes relating to the Secretary of Labor. Sub-
sec. (e) added by Act of Aug. 3, 1956, 70 Stat. 981, which also amended subsec. (a) by substituting
$300 for $150.
NoTE-Temporary members of the Coast Guard Reserve were not affected by the Act of Aug.
1, 1956, 70 Stat. 857. See sees. 102(2), 5, and 6(A).
52
PAGENO="0345"
1027
izing compensation for employees of the United States suffering injuries
while in the performance of their dunes, subject to this section, shall
apply, and shall be administered by the Secretary of Labor in the same
manner and to the same extent as if such person were a civil employee
of the United States and were injured in the performance of his duty.
For benefit computation, regardless of pay or pay status, such person
shall be deemed to have had monthly pay of $300.
(b) This section shall not apply in any case coming within the pur-
view of the Workmen's Compensation Law of any state, territory,
or other jurisdiction because of a concurrent employment status of
such temporary member; and where such temporary member or de-
pendent would be entitled to a benefit under the provisions of law auth-
orizing compensation for employees of the United States suffering
injuries while in the performance of their duties and also to any con-
current benefit from the United St~ates on account of the same disability
or death, such temporary member or dependent shall elect which bene-
fit he shall recieve.
(c) Whenever, pursuant to this section, a claim is filed with the
Secretary of Labor for benefits because of an alleged injury or death,
the Secretary of Labor, or such officer, agency, or employee of the De-
partment of Labor as he shall designate, shall notify the Commandant
who shall cause an investigation to be made into the facts~ surrounding
such alleged injury and make certification with respect thereto, including
certification as to such injured or deceased person's temporary member-
ship in the Reserve and his military status, and whether the injury or
death occurred incident to service.
(d) Temporary members of the Reserve who incur physical dis-
ability or contract sickness or disease while performing any specific
duty to which they have been assigned by competent Coast Guard
authority shall be entitled to the same hospital treatment afforded
officers and enlisted men of the Coast Guard.
(e) In administering the Federal Employees' Compensation Act
for persons covered by this section-
(1) the percentages applicable to payments under section 10
of that Act are-
(A) 45 per centum for clause (C) of that section, in any
case where the member died fully or currently insured under
title II of the Social Security Act, with no additional pay-
ments for a child or children so long as the widow or widower
remains eligible for payments under that clause;
(B) 20 per centum for clause (D) of that section, for one
child, and 10 per centum additional for each additional child,
but not more than a total of 75 per centum, in any case where
the member died fully or currently insured under title II of
the Social Security Act, and
(C) 25 per centum for clause (E) of that section, if one
parent was wholly dependent for support upon the deceased
member at the time of his death and the other was not de-
pendent to any extent; 16 per centum to each if both were
wholly dependent; and if one was, or both were partly de-
pendent, a proportionate amount in the discretion of the
Secretary of Labor.
(2) no payments may be made under clause (P) of that section;
and
53
PAGENO="0346"
1028
(3) the Secretary of Labor or his designee shall inform the Sec-
retary of Health, Education, and Welfare whenever a claim is
filed and eligibility for compensation is established under clause
(C) or clause (D) of section 10 of that Act, and that Secretary
shall then certify to the Secretary of Labor as to whether or not
the member concerned was fully or currently insured under title
II of the Social Security Act at the time of his death.
COAST GUARD AUXILIARY
The Act of Feb. 19, 1941, 55 Stat. 9, as amended by Act of Sept. 30,
1944, 58 Stat. 761, title 14 USC, as revised and reenacted by Act of
Aug. 4, 1949, 63 Stat. 495, 14 USC 832, provided:
"When any member of the Auxiliary is physically injured or dies as a
result of physical injury incurred while performing any specific duty to
which he has been assigned by competent Coast Guard authority, such
member or his beneficiary shall be entitled to the same benefits provided
for temporary members of the Reserve who suffer injury or death re-
sulting fr9m physical injury incurred incident to service. Members of
the Auxiliary who incur physical injury or contract sickness or disease
while performing any specific duty to Which they have been assigned
by competent Coast Guard authority shall be entitled to the same hos-
pital treatment afforded officers and enlisted men of the Coast Guard."
WOMEN'S RESERVE (COAST GUARD)
The Act of Feb. 19, 1941, 55 Stat. 9, as amended by Act of Nov. 23,
1942, 56 Stat. 1020; 14 USC 386, provided that the members of the
Women's Reserve ~ * * shall be entitled to the same benefits as are
provided for temporary members of the Reserve * * ~". This provision
was modified to accord with the provisions affecting the Women's Re-
serve (Navy) by Act of Nov. 8, 1943, 57 Stat. 586. The Act of Nov. 23,
1942, was repealed by the Act of July 25, 1947, 61 Stat. 450. The re-
vision and reenactment of law of title 14 USC by Act of Aug. 4, 1949,
63 Stat. 554, provided for a permanent Women's Reserve as a branch
of the Coast Guard Reserve. For benefits applicable to personnel of the
Coast Guard Reserve, see page 45.
PUBLIC HEALTH SERVICE
Commissioned officers of the Public Health Service, regular and re-
serve (including their surviving beneficiaries), were first provided for
and given entitlement to benefits under the Federal Employees' Com-
pensation Act by the Public Health Service Act of 1943, 59 Stat. 589.
The Public Health Service Act of 1943 was repealed by the Act of July
1, 1944, 58 Stat. 719. By section 605 of the Act of July 1, 1944, 58 Stat.
712, "commissioned officers of the Regular Corps of the Public Health
Service, [and] officers in the Reserve of the Public Health Service on
active duty" were included within the definition of "employee" in
section 40 of the Federal Employees' Compensation Act. In addition
to providing such benefits prospectively for such officers, section 605(c)
and (d) of the 1944 Act gave retrospective coverage as regards injuries
54
PAGENO="0347"
1029
and deaths which occurred after Dec. 7, 1941. Subsection (c) was re-
pealed; its contents appear in the footnote. `~ 6 Subsection (d) remains in
effect, `~ and provides as follows:
"(d) In the case of death of a commissioned officer of the Public
Health Service which occurred after December 7, 1941, and prior to
November 11, 1943 the rights provided to surviving beneficiaries by
section 10 of the Public Health Service Act of 1943 shall continue not-
withstanding the repeal of that Act."
By Act of August 1, 1956, 70 Stat. 883, effective January 1, 1957,
commissioned officers of the Public Health Service, commissioned
officers in the Reserve Corps of the Public Health Service on active
duty, and commissioned officers of the Coast and Geodetic Survey were
excluded from the definition of "employee," contained in section 40
of the Federal Employees' Compensation Act. For the effect of the
Act of August 1, 1956, upon benefits for death or disability prior to
January 1, 1957, see page 45.
Subchapter VIII
EXTENSIONS OF ACT OF SEPTEMBER 7, 1916, WITH LIMITED
BENEFIT PROVISIONS
CIVIL WORKS ADMINISTRATION
14 8That the provisions of the Act entitled "An Act to provide com-
pensation for employees of the United States suffering injuries while
*in the performance of their duties, and for other purposes," approved
September 7, 1916 (U.S.C. title 5, Sec. 785) as amended, are hereby
extended, so far as they may be applicable, to employees of the Federal
Civil Works Administration only for disability or death resulting from
1'6Repealed effective July 25, 1948, by Act of July 25, 1947, 61 5tat. 449, 451, subsection (c) read as
follows:
"In the case of injury or death of a commissioned officer of the Service occurring after November 10,
1943, and on or before the date of the termination of the present war, the election required by section
7 of such Act of 5eptember 7, 1916, as amended (U.5.C., 1940 edition, title 5, sec. 757), may be made,
and the notice required by section 15 thereof and the written claim required by section 18 thereof may
be filed, within such time as may be provided by regulations of the United States Employees' Compensa-
tion Commission, but not later than the expiration of one year following the termination of the present
war. Prior to the expiration of such year any such election may be revised, and such revision shall op-
erate retroactively to the date of death or injury, but there shall be deducted from the compensation
or other benefit payable pursuant to a revised election any sum (except the proceeds of any insurance
policy) theretofore paid on account of such death or injury."
The provisions of sections 9 and 10 of the Public Health Service Act of 1943, supra, relating to com-
pensation for injury and death read as follows:
"Sac. 9. Commissioned officers of the Public Health Service, regular and reserve (including their
surviving beneficiaries), shall be entitled to receive the same benefits for injury or death in the perform-
ance of their duties as civil officers and employees of the United States under the United States Employees'
Compensation Act of September 7, 1916, as amended: Provided, That any such officer or beneficiary of
such officer eligible to receive any benefit authorized by this section who is also eligible to receive any
payment or benefit (except the proceeds of any insurance policy) under any provision of law other than
such Act of September 7, 1916, as amended, on account of the same injury or death, shall elect which
benefit he shall receive.
"SEc. 10. The surviving beneficiaries of any commissioned officer of the Public Health Service, reg-
ular or reserve, who since December 7, 1941, and prior to the enactment of this Act, has lost his life while
on active duty in the Public Health Service or while detailed to the Army, Navy, or Coast Guard, shall
receive six months' pay as provided in the Act of June 4, 1920, as amended (U.S.C., 1940 edition, sup,
II, title 34, sec. 943), and unless entitled to compensation under the laws administered by the Veterans'
Administration, shall receive the benefits provided under section 9 of this Act."
`4 `The Act of September 3, 1954, 68 Stat. 1231, amended subsection (d) to eliminate the second sen-
tence relating to right of beneficiary to elect.
`48Act of February 15, 1934, 48 Stat. 351, as amended, October 14, 1949, 63 Stat. 854, and September
13, 1960, 74 Stat. 907. For increase in benefits see subsequent acts under Emergency Relief Appropria-
tions. (Note-Persons employed in useful public works, under the Act of March 31, 1933 (48 Stat. 22),
were given compensation rights under sec. 3 thereof reading as follows: "Insofar as applicable, the bone-
fits of the Act entitled `An Act to provide compensation for employees of the United States suffering
while in the performance of their duties, and for other purposes,' approved September 7, 1916,
as oosded, shall extend to persons given employment under the provisions of this Act.") The Act of
February 15, 1934, limited maximum monthly compensation to $25 and total aggregate payments to
55
PAGENO="0348"
1030
traumatic injury while in the performance of duty, subject, however,
to the following conditions anti limitations:
(a) that the aggregate monetary compensation in any individual
case, except compensation for death or for permanent total disability,
shall not exceed the sum of $4,000 and that the monthly monetary
compensation shall not in any event exceed $150, both exclusive of
medi~al costs;
(b) that, in lieu of the minimum limit on monthly compensation for
disability established by section 6 and the minimum limit on the monthly
pay on which death compensation is to be computed as provided by
section 10 (K) of such Act, the monthly pay on the basis of which com-
pensation for disability or death is computed shall be deemed to be not
less than $150 and compensation shall be payable on the basis of such
pay regardless of the actual pay at the time of injury or death, except
that the Secretary of Labor may from time to time, by regulation, fix
a lower minimum monthly pay as a basis for computing such compen-
sation as to any class of individuals, specified in the fourth paragraph of
section 42 of such Act, as amended, who sustained injury or were killed
outside the continental United States;
(c) that the Secretary of Labor may from time to time, subject to
the above limitations, establish a special schedule of compensation for
disability and for death (including a special schedule of compensa-
tion for the loss, or loss of use, of members or functions of the body),
and compensation under such schedule shall be in lieu of all other com-
pensation in such cases;
(d) that the rights of any person employed by the Federal Civil Works
Administration to compensation or other benefits which may have ac-
crued prior to and including the date of approval of this Act under the
provisions of the Act of September 7, 1916, as amended (U.S.C. title 5,
ch. 15), and/or the rules and regulations of the Federal Civil Works
Administration shall terminate upon the date of the approval of this
Act; and thereafter compensation and other benefits to any such person
for death or disability arising before or after the date of the approval of
this Act shall be paid in accordance with the provisions hereof;
$3500. The maximum monthly compensation was raised to $30 by the Emergency Relief Appropriation
Act of 1937, 50 Stat. 356 and to $50 by the Emergency Relief Appropriation Act of 1938 52 Stat. 814.
The latter Act provided that effective July 1, 1938 the aggregate payments shall not exceed $4000.
The Act of October 14, 1949, 63 Stat. 869, repealed the provisos to the 1937 and 1938 Emergency Relief
Appropriation Acts setting monthly limits of $30 and $50 respectively and, effective November 1, 1949,
provided that the maximum monthly compensation shall not exceed $100 and set a minimum monthly
pay for computation purposes of $75. The 1949 amendment eliminated the $4000 maximum total ag-
gregate in cases involving death or permanent total disability. The amendment of September 13, 1960.
raised the maximum monthly amount and the minimum monthly pay to the above-stated amounts.
By numerous emergency relief appropriation acts, Congress provided specific provisions which en-
abled workmen's compensation benefits to be awarded pursuant to the Act of February 15, 1934, to
certain beneficiaries covered by that Act. These acts are as follows: 1935, 49 Stat. 115; 1936, 49 Stat.
1608; 1937, 50 Stat. 356, amended October 14, 1949, 63 Stat. 854; 1938, 52 Stat. 814; amended February
4, 1939 (53 Stat. 507), and October 14, 1949 (c. 391, 63 Stat. 854); 1939, 53 Stat. 927; fiscal year 1941,
54 Stat. 622; fiscal year 1942, 55 Stat. 404; 1943, 56 Stat. 642.
In addition to coverage of persons rendering services as employees of the United States, Congress
specifically extended coverage of the Act of l~ebruary 15, 1934, by various emergency relief appropri-
ation acts to persons rendering service under the National Youth Administration (created by Executive
Order of June 26, 1935). These Acts are as follows: 1936, 49 Stat. 1608; 1937, 50 Stat. 356, amended
October 14, 1949, 63 Stat. 854: 1938, 52 Stat. 814, amended February 4, 1939, 53 Stat. 507; and October
14, 1949, 63 Stat. 854; 1941, 54 Stat. 590); 1942, 55 Stat. 487; 1943, 56 Stat. 571. Further, the Act of
December 20, 1944 (c. 615, sec. 8, 58 Stat. 829), authorizing funds for certain internal improvements in
the virgin Islands in part stated: `The provisions of the Act of February 15, 1934, 48 Stat. 351, as amended
relating to disability or death compensation and benefits shall apply to persons (except administrative
employees qualifying as civil employees of the United States) receiving compensation from funds ap-
propriated pursuant to this (1944] Act for services rendered as employees of the United States. Provided,
`rhat this section shall not apply in any case coming within the purview of the workmen's compensation
laws of the Virgin Islands, or in any case in which the claimant has received or is entitled to receive sim-
ilar benefits for injury or death." 48 U.S.C.
Subsequent to 1943, compensation benefits authorized by the Act of February 15, 1934 and by the
several emergency relief appropriation acts were paid from the annual appropriation to th `
Compensation Fund.
56
PAGENO="0349"
1031
(e) that the said Secretary is hereby authorized in his discretion to
provide for the initial payments of compensation and the furnishing
of immediate medical attention as herein provided through the local
representatives of the Federal Civil Works Administration;
(f) that no claim for legal services or for any other services rendered
in respect of a claim or award for compensation, to or on account of
any person, shall be valid unless approved by the Secretary; and any
person who receives any fee, other consideration, or any gratuity on
account of services so rendered, unless such consideration or gratuity
is approved by the Secretary, or who makes it a business to solicit em-
ployment for a lawyer or himself in respect of any claim or award for
compensation, shall be guilty of a misdemeanor, and upon conviction
thereof shall, for each offense, be punished by a fine of not more than
$1,000 or by imprisonment not to exceed one year or by both such fine
and imprisonment: Provided further, That traumatic injury shall mean
only injury by accident causing damage or harm to the physical struc-
ture of the body and shall not include a disease in any form except as
it shall naturally result from the injury: And provided further, That so
much of the sum appropriated by this Act as the Secretary of Labor,
with the approval of the Director of the Budget, estimates and certifies
to the Secretary of the Treasury will be necessary for administrative
expenses and for the payment of such compensation shall be set aside
in a special fund to be administered by the Secretary for such purposes;
and after June 30, 1935, such special fund shall be available for these
purposes annually in such amounts as may be specified therefor in the
annual appropriation acts.
CIVILIAN CONSERVATION CoRPS
1 4 ~Enrollees shall be provided, in addition to the monthly rates of
pay, with such quarters, subsistence, and clothing, or commutation in
lieu thereof, medical attention, hospitalization, and transportation as
the Director may deem necessary: Provided, That burial, embalming,
and transportation expenses of deceased enrolled members of the Corps,
regardless of the cause and place of death, shall be paid in accordance
with regulations of the Secretary. Provided further, That the provisions
of the Act of February 15, 1934 (U.S.C. 1934 ed., title 5, sec. 796),
relating to disability or death compensation and benefits shall apply
to the enrolled personnel of the Corps.
SAME; ENROLLEES RECEIVING TREATMEN'I' Al' GOVERNMEN'I' EXPENSE
1 5 oThat the Secretary shall furnish medical and hospital services
and treatment and burial expenses, including transportation and other
expenses incidental to such services, treatment and burial, to such en-
rollees of the Civilian Conservation Corps who may be certified by the
Director of such Corps as receiving hospital services and treatment at
Government expense on June 30, 1943, and who are not entitled thereto
under the Act of September 7, 1916, as amended and extended, and
1~9Act of June 28, 1937, effective July 1, 1937, 50 Stat. 321. This Act was continued to July 1, 1943,
by Act of August 7, 1939, 53 Stat. 1253. For liquidation of the Corps, see Acts of July 2, 1942. 56 Stat.
569, and July 12, 1943, 57 5tat. 498. For prior compensation provisions, see Act of June 19, 1934, 48
Stat. 1056, repealing sec. 3 of the Act of March 31, 1933, 48 5tat. 23, insofar as the 1933 statute related
to enrollees of the Civilian Conservation Corps. The Act of March 31, 1933, until repealed, extended
full benefits of the Federal Employees' Compensation Act to enrollees. For legislation pertaining to the
enabling emergency appropriations, see note 148, pages 55 & 56.
`°°Act of July 12, 1943, 57 Stat. 514. Similar relief provisions have been included in all annual corn-
pensation fund appropriations since 1943.
57
75-623 0 - 74 - pt. 3 - 23
PAGENO="0350"
1032
the limitations and authority of the Act of September 7,1916, as amended,
shall apply in providing such services, treatment, and expenses.
This title may be cited as the "Employees' Compensation Commis-
sion Appropriation Act, 1944."
RELIEF FOR CERTAIN VETERANS, VICTIMS OF FLORIDA HURRICANE OF
1935
~ `That the provisions of the Act entitled "An Act to provide com-
pensation for employees of the United States suffering injuries while
in the performances of their duties, and for other purposes," approved
September 7, 1916, as amended (U.S.C. 1934 ed., title 5, ch. 15), are
hereby made applicable to any veterans of the World War or other
person attached to camps known as "Veterans' Camps Numbered 1,
3, and 5," who was injured, died, or shall die as the direct result of
the hurricane at Windlys Island and Matecumbe Keys, Florida, Sep-
tember 2, 1935, and to their dependents, to the same extent and under
the same conditions as are provided for employees and the dependents
of employees of the Federal Civil Works Administration in the Act
entitled "An Act making an additional appropriation to carry out
the purposes of the Federal Emergency Relief Act of 1933 for the con-
tinuation of the Civil Works program, and for other purposes" ap-
proved February 15, 1934 (U.S.C. 1934 ed., title 5, sec. 796), and the
special fund established in the Treasury of the United States for ad-
ministrative expenses and for the payment of compensation awarded to
employees of the Civil Works Administration shall be available for
the payment of the benefits authorized by this section. * * *
WAR RELOCATION WORK CORPS
55 2That the provisions of the Act of February 15., 1934, (48 Stat. 351),
as amended, relating to disability or death compensation and benefits,
shall apply to persons receiving from the United States compensation
in the form of subsistence, cash advances, or other allowances in ac-
cordance with regulations prescribed by the Director of the War Re-
location Authority for work performed in connection with such program,
including work performed in the War Relocation Work Corps: Provided
further, That this provision shall not apply in any case coming within
the purview of the workmen's compensation laws of any State, Terri-
tory, or possession, or in which the claimant has received or is entitled
to receive similar benefits for injury or death.
In addition, the Act of June 22, 1943, 57 Stat. 161, provided as follows
with respect to Work Relief in Puerto Rico and the Virgin Islands:
APPROPRIATION FOR WORK RELIEF IN PUERTO RICO AND VIRGIN ISLANDS
That the Federal Works Administrator is authorized to provide
work for employable needy persons on useful public projects in Puerto
Rico and the Virgin Islands for the period July 1, 1943, to Novem-
ber 30,1943, in accordance with the appropriate provisions and for
"Act of June 26, 1936, 49 Stat. 2035.
lS2Act of July 25, 1942, 56 Stat. 710; repeated in Act of July 12, 1943, 57 Stat. 534; Act of June 28,
1944, 58 Stat. 545; and in Act of July 17, 1945, 59 Stat. 486.
58
PAGENO="0351"
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the purposes prescribed in the Emergency Relief Appropriation Act,
fiscal year 1943 [Act of July 2, 1942, 56 Stat. 634, 642, supra this note.]
which provisions are hereby extended and made applicable to the ap-
propriations made to carry out the purposes of this joint resolution.
There is, hereby authorized to be appropriated a sum not to exceed
$8,000,000 to carry out the provisions of this joint resolution, including
administrative expenses in connection therewith.
Subchapter IX
MISCELLANEOUS PROVISIONS AND REFERENCES
ARTIFICIAL MEMBERS FOR CERTAIN CIVILIAN EMPLOYEES INJURED
PRIOR TO SEPTEMBER 7, 1916
16 `The Secretary of Labor, under such regulation as he may pre-
scribe, is hereby authorized to furnish any civilian employee of the
military or naval service, Regular Establishment, who lost a limb or
the use thereof through injury or disease incurred or contracted in
line of duty as such prior to September 7, 1916, with an artificial limb
or other appliance, or commutation in lieu thereof, at least once in
every three years, upon the application of the person entitled thereto,
or someone on his behalf, including necessary transportation to effect
the fitting thereof and the compensation fund, established pursuant to
section 35 of the Act approved September 7, 1916 (U.S.C. title 5, sec.
785) (5 U.S.C.A. 785), shall be available for expenditures under this
section: Provided, That the commutation payable to any civilian em-
ployee in lieu of such artificial limb or other appliance shall be in the
amount last paid to such employee under laws repealed by section 3 of
this Act.
SEAMEN EMPLOYED THROUGIT WAR SHIPPING ADMINISTRATION
1 6 ~Officers and members of crews * * *employed on United States
or foreign flag vessels as employees of the United States through the
War Shipping Administration shall * * * have all of the rights, bene-
fits, exemptions, privileges, and liabilities, under law applicable to
citizens of the United States employed as seamen on privately owned
and operated American vessels. Such seamen * * * shall not be considered
as officers or employees of the United States for the purposes of the
United States Employees' Compensation Act, as amended (chapter 15
of title 5) * * *
PAYMENTS TO MERCHANT SEAMEN FOR WORLD WAR II. SERVICE
CONNECTED INJURIES, ETC.
1 5 ~The Secretary of Commerce shall certify to the Secretary of
Labor amounts payable under crew life and injury and second sea-
~~Act of May 23, 1944, 58 Stat. 225.
15'Act of March 23, 1943, 57 Stat. 45. Prior to March 23, 1943, under General Orders promulgated
by the War Shipping Administration and under certain contracts, seamen hired for the account of the
War Shipping Administration became employees of the United States Government.
1'5Act of September 8, 1959, 73 Stat. 469.
59
PAGENO="0352"
1034
men's war risk insurance policies issued under authority of subtitle
"Insurance" of title II of the Merchant Marine Act, 1936, as amended,
extended, and supplemented (Act of June 29, 1940, section 222 (54
Stat. 689); Act of March 6, 1942 (56 Stat. 140); Act of April 11, 1942
(56 Stat. 214); Act of March 24, 1943, section 2 (57 Stat. 45); Act of
September 30, 1944 (58 Stat. 758); Act of August 8, 1946 (60 Stat. 937) ).
Payments of such amounts so certified shall be made by the Secretary
of Labor from the Employees' Compensation Fund established under
the Federal Employees' Compensation Act of September 7, 1916, as
amended (5 U.S.C. 751, 785).
-`SEC. 2. The powers, duties, and functions of the Secretary of Com-
merce in respect of permanent total or partial disability benefits (a!-
lowable upon exhaustion of insurance benefits referred to in section 1
hereof) under section 2 (c) of the Act of March 24, 1943 (Public Law 17,
Seventy-eighth Congress; 57 Stat. 45), as amended by the Act of Sep-
tember 30, 1944 (Public Law 449, Seventy-eighth Congress; 58 Stat. 758),
are hereby transferred to the Secretary of Labor. Payments of such
benefits, including costs and payments on account of medical care
authorized by the Secretary of Labor, shall be made by him from the
Employees' Compensation Fund as established under the Federal Em-
ployees' Compensation Act of September 7, 1916, as amended (5 U.S.C.
751, 785). The Secretary of Commerce shall furnish to the Secretary of
Labor such information, data and reports and certifications in respect
of cases within the purview of this section as the Secretary of Labor may
request. Nothing in this section shall be construed to authorize any
appeal to, or review or redetermination by, the Secretary of Labor from
any order, finding, determination, or adjudication in respect of eligibility
for benefits made by the Secretary of Commerce in force on the effective
date of this Act, except upon a showing to the satisfaction of the Secre-
tary of Labor of a change iii the nature and extent of the disability for
which benefits were approved for payment in accordance with the pro-
visions of such Acts.
SEC. 3. The Secretary of Labor is authorized to make such rules and
regulations as he may deem necessary or appropriate to carry out the
provisions of this Act and the functions vested in him by this Act.
COMPENSATION PAID TO EMPLOYEES OF U.S. SHIPPING' BOARD
15 6That the compensation heretofore or hereafter paid by the United
States Shipping Board Emergency Fleet Corporation to or on account
of employees for disability or death resulting from personal injuries
sustained while in the performance of their duties shall be in full satis-
faction of the claims of such employees or their legal representatives
against the United States.
FIRE PROTECTION AGREEMENTS
ZAny service performed pursuant to reciprocal fire fighting agree-
ments between agencies of the United States and public or private
fire organizations by any officer, employee or member of any armed
``6Act of December 24, 1919, 41 Stat. 377. The Act of February 11, 1927, 44 Stat. 1083, changed the
name of the U.5. Shipping Board to the United States Shipping Board Merchant Fleet Corporation
which was dissolved by Act of June 29, 1936 Cc. 858. 49 Stat. 1987).
```Act of May 27, 1955, 69 Stat. 67.
60
PAGENO="0353"
1035
service of the United States constitutes service rendered in line of duty
in such office, employment, or force. However, the performance of such
service by any other individual shall not constitute such individual an
officer or employee of the United States for the purposes of the Federal
Employees' Compensation Act.
PAYMENT OF VETERANS' PENSIONS; PEACETIME SERVICE
DISABILITY
For information pertaining to election of benefits for peacetime
service disability or death see Part IV A, entitled Military Extensions-
Repeal of Coverage, and the footnotes thereto. Veterans Regulations
No. 1 (a) Part II promulgated pursuant to ch. 12, title 38 U.S.C. (omitted
from the 1958 recodification of Title 38 U.S.C.) provides as follows:
* * * Pension under this paragraph shall not be paid concurrently
with active duty pay or employees' compensation. Where a person
who is eligible for pension hereunder is also eligible for the benefits
of Employees' Compensation Act, he shall elect which benefit he shall
receive.
CIVIL SERVICE RETIREMENT ANNUITY ACT PROVISIONS RELATING TO
COMPENSATION BENEFITS
1 5 8~\T~ person shall be entitled to receive an annuity under the pro-
visions of this Act, and compensation for injury or disability to him-
self under the provisions of the Act of September 7, 1916, entitled "An
Act to provide compensation for employees of the United States suffering
injuries while in the performance of their duties, and for other purposes,"
covering the same period of time; but this provision shall not be so con-
strued as to bar the right of any claimant to the greater benefit conferred
by either Act for any part of the same period of time, nor shall this pro-
vision nor any provision in such Act of September 7, 1916, be construed
so as to deny to any person an annuity accruing to such person under
this Act on account of service rendered by him, or to deny any concurrent
benefit to such person under such Act of September 7, 1916, on account
of the death of any other person.
Notwithstanding any provision of law to the contrary, the right of
of any person entitled to an annuity under this Act shall not be affected
because such person has received an award of compensation in a lump
sum under section 14 of such Act of September 7, 1916 (5 U.S.C. 751),
except that where such annuity is payable on account of the same dis-
ability for which compensation under section 14 of such Act of September
7, 1916, has been paid, so much of such compensation as has been paid
for any period extended beyond the date such annuity becomes effective,
as determined by the Secretary of Labor, shall he refunded to the De-
partment of Labor, to be covered into the Federal Employees' Compen-
sation Fund. Before such person shall receive such annuity he shall (1)
refund to such Department the amount representing such commuted
payments for such extended period, or (2) authorize the deduction of
such amount from the annuity payable to him under this Act, which
amount shall be transmitted to such Department for reimbursement
```Act of July 3, 1926, 44 Stat. 907; Act of May 29, 1930, 46 Stat. 472; Act of December 23. 1944, 58
Stat. 927; Act of July 27. 1946, 60 Stat. 706. See also 5 USC 8116.
61
PAGENO="0354"
1036
to such fund. Deductions from such annuity may be made from accrued
and accruing payments, or may be prorated against and paid from ac-
cruing payments in such manner as the Secretary shall determine,
whenever he finds that the financial circumstances of the annuitant
are such as to warrant such deferred refunding.
ABOLITION OF COMMISSION AND TRANSFER OF FUNCTIONS
ESTABLISHMENT OF THE BUREAU OF EMPLOYEES' COMPENSATION
SEC. 3 of 1946 Reorganization Plan No. 2, effective July 16, 1946,
11 F.R. 7873, 60 Stat. 1096, provided as follows:
"The Functions of the United States Employees' Compensation
Commission are transferred to the Federal Security Agency and shall
be performed in such manner and under such rules and regulations as
the Federal Security Administrator shall prescribe. Such regulations
shall provide for a board of three persons to be designated or appointed
by the Federal Security Administrator with authority to hear and,
subject to applicable law, make final decision on appeals taken from
determinations and awards with respect to claims of employees of the
Federal Government or of the District of Columbia. The United States
Employees' Compensation Commission is abolished."
Effective July 16, 1946, the Federal Security Administrator estab-
lished the Bureau of Employees' Compensation under the supervi-
sion of a Director and delegated, to be performed by him, all the duties,
powers, and functions of the United States Employees' Compensation
Commission which were transferred to the Administrator by Reorgani-
zation Plan No. 2 of 1946, except estimates to the Bureau of the Budget
and annual and other reports to Congress. See Agency Order No. 58,
dated July 16, 1946, 11 F.R~. 7943.
TRANSFER OF THE FUNCTIONS OF THE BUREAU TO THE DEPARTMENT OF
LABOR
SEC. 1 of Reorganization Plan No. 19 of 1950, effective May 24, 1950,
15 F.R. 3178, 39 Stat. 742, provided as follows:
"The Bureau of Employees' Compensation of the Federal Security
Agency, together with its functions, is transferred to the Department
of Labor and shall be administered under the direction and supervision
of the Secretary of Labor. The functions of the Federal Security Ad-
ministrator, and of the Federal Security Agency, with respect to the
Bureau of Employees' Compensation and with respect to employees'
compensation (including workmen's compensation) are transferred to
the Secretary of Labor: Provided, That there are not transferred by the
provisions of this reorganization plan (1) any function of the Public
Health Service; (2) any function of the Federal Security Agency or the
Federal Security Administrator under the Vocational Rehabilitation
Act, as amended (including the function of assuring the development and
accomplishment of State rehabilitation plans affecting beneficiaries
under the Federal Employees' Compensation Act); nor (3) the function
of developing or establishing rehabilitation services or facilities. The
functions transferred by the provisions of this section shall be performed
by the Secretary of Labor, or, subject to his direction and control, by
62
PAGENO="0355"
1037
such officers, agencies, and employees of the Department of Labor as
he shall designate."
Effective May 24, 1950, the Secretary of the Department of Labor
directed that all functions, powers, and duties vested in the Secretary
of Labor under sec. 1 of Reorganization Plan No. 19 of 1950 would be
performed by or under the direction of the Director of the Bureau of
Employees' Compensation except those functions relating to (1) per-
sonnel and business management, (2) the preparation and submission
of annual and other reports and recommendations to Congress, and
(3) so much of the functions, duties, and powers authorized under sec-
tion 41 of the Longshoremen's and Harbor Workers' Compensation
Act, and as authorized under section 33 (b) and (c) of the Federal Em-
ployees' Compensation Act, as relate to safety investigations, recom-
mendations to employers, and the developing, supporting and foster-
ing of organized safety promotion. See Department of Labor General
Order No. 46, dated May 24, 1950, and Amendment No. 1 of September
6, 1950 and General Order No. 46 (Revised), dated October 13, 1959
(24 F.R. 72).
ESTABLISHMENT OF THE EMPLOYEES' COMPENSATION APPEALS BOARD
Federal Security Agency Order No. 58, dated July 16, 1946, 11 F.R.
7943, established an Employees' Compensation Appeals Board to hold
hearings and make decisions on appeals taken from determinations and
awards, with respect to claims of employees of the Federal Govern-
ment or of the District of Columbia, under the Federal Employees'
Compensation Act. For regulations governing such appeals see 20
CFR, Parts 501 and 502.
TRANSFER OF THE FUNCTIONS OF THE EMPLOYEES' COMPENSATION APPEALS
BOARD TO THE DEPARTMENT OF LABOR
SEC. 2 of Reorganization Plan No. 19 of 1950, effective May 24, 1950,
15 F.R. 3178, 39 Stat. 742, provided as follows
"The Employees' Compensation Appeals Board of the Federal Se-
curity Agency, together with the functions thereof, is transferred to
the Department of Labor. The functions of the Federal Security Ad-
ministrator with respect to the Employees' Compensation Appeals
Board are transferred to the Secretary of Labor. The Board shall con-
tinue to have authority to hear and, subject to applicable law and the
rules and regulations of the Secretary of Labor, to make final decision
on appeals taken from determinations and awards with respect to claims
of employees of the Federal Government or of the District of Columbia."
See Department of Labor General Order No. 46 (Revised), dated Oc-
tober 13, 1959 (24 F.R. 72).
* U.S. GOVERNMENT PRINTING OFFICE: 1970 0-361-188
63
PAGENO="0356"
PAGENO="0357"
MILITARY PERSONNEL AND CIVILIAN
EMPLOYEES' CLAIMS ACT OF 1964
31 U.S.C. 240-243, 78 Stat. 767, P.L. 88-558; 79 Stat. 789, P.L. 89-185
§ 240. Settlement of claims of military and civilian personnel for
damages to or loss of personal property incident to
service; definitions.
As used in this Act-
(1) "agency" includes an executive department, military de-
partment, independent establishment, or corporation primarily
acting as an instrumentality of the United States, but does not
include any contractor with the United States;
(2) "uniformed services" means the Army, Navy, Air Force,
Marine Corps, Coast Guard, Coast and Geodetic Survey, and
Public Health Service; and
(3) "settle" means consider, ascertain, adjust, determine, and
dispose of any claim, whether by full or partial allowance or
disallowance.
(4) "military department" means Department of the Army,
Department of the Navy, and the Department of the Air Force.
(Pub. L. 88-558, § 2, Aug. 31, 1964, 78 Stat. 767; Pub. L. 89-185,
§ 3(a), Sept. 15, 1965,79 Stat. 789.)
AMENDMENTS
1965-Par. (1). Pub. L. 89-185 inserted military department in the definition
of "agency".
Par. (4). Pub. L. 89-185 added par. (4) defining "military department".
SHORT TITLE
Section 1 of Pub. L. 88-558 provided: "That thi~ Act [which enacted sections
240-242 of this title, amended section 2735 of Title 10, and repealed section 2732
of Title 10 and section 490 of Title 14] may be cited as the `Military Personnel
and Civilian Employees' Claims Act of 1964'."
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 241, 243 of this title.
§241. Same; payments.
(a) Authority of heads of military departments and Secretary
of the Treasury; claims by members of uniformed services;
limitation; replacement of property in kind; authority of
Department of Defense over claims of civilian employees;
payments to survivors.
(1) Under such regulations as the head of an agency may pre-
scribe, he or his designéé iri~y settle and pay a claim arising after the
effective date of this Act against the United States for not more than
(1O~9)
PAGENO="0358"
1040
$6,500 made by a member of the uniformed services under the juris-
diction of that agency or by a civilian officer or employee of that
agency, for damage to, or loss of, personal property incident to his
service. If the claim is substantiated and the possession of that prop-
erty is determined to be reasonable, useful, or proper under the cir-
cumstances, the claim may be paid or the property replaced in kind.
This subsection does not apply to claims settled before its enactment.
(2) Under such, regulations as the Secretary of Defense may pre-
scribe, he or any officer designated by him as the same authority as the
Secretary of a military department with respect to a claim by a civilian
employee of the Department of Defense not otherwise covered by this
subsection for damage to, or loss of personal property incident to, his
service.
(3) If a person named in subsection (a) is dead, the head of the
agency concerned or his designee, or the Secretary of the Treasury
or his designee, or the Secretary of Defense or his designee, as the
case may be, may settle and pay any claim made by the decedent's
surviving (1) spouse, (2) children, (3) father or mother, or both,
or (4) brothers or sisters, or bOth, that arose, concurrently with, or
after the decedent's death and is otherwise, covered by subsection (a).
Claims of survivors shall be settled and paid in the order named.
(b) Members of non-military departments; limitation; replace-
ment of property in kind; payments to survivors.
(1) Subject to any policies the President may prescribe to effectu-
ate the purposes of this subsection and-
(A) under regulations the head of an agency (other than a mili-
tary department, the Secretary of the Treasury with respect to the
Coast Guard, the Department of Defense, or any agency or office
referred to in subparagraph (B) of this paragraph) may pre-
scribe for his agency or, in the case of ACTION, all of that part
of ACTION other than the office referred to in such subpara-
graph, part thereof, he or his designee may settle and pay a claim
arising after August 31, 1964, against the United States for not
more than $6,500 made by a member of the uniformed services
under the jurisdiction of that agency or by a civilian officer or em-
ployee of that agency or part thereof, for damage to, or loss of,
personal property incident to his service; and
(B) under regulations the Secretary of State, the Administra-
tor for the Agency for International Development, the T)ir&~tor of
the United States Information Agency, the Director of the United
States Arms Control and Disarmament Agency, the Director of
ACTION with respect to the office of ACTION engaged primarily
in carrying out the Peace Corps Act, and the Board of Directors
of the Overseas Private Investment Corporation, may prescribe
for their agencies or, in the case of ACTION, for such office, he or
his designee may settle and pay a claim arising after August 31,
1964, against the United States for not more than $10,000 made
by a civilian officer or employee of such a~rency or office for damage
to, or loss of personal property incident to his service.
If the claim is substantiated and the possession of that property is de-
termined to be reasonable, useful, or proper under the circumstances,
PAGENO="0359"
1041
the claim may be paid or the property replaced in kind. This subsec-
tion does not apply to claims settled before August 31, 1964.
(c) Time limitation for presentation of claims.
A claim may be allowed under this section for damage to, or loss of,
property only if-
(1) It is presented in writing within two years after it accrues,
except that if the claim accrues in time of war or in time of armed
conflict in which any armed force of the United States is engaged
or if such a war or armed conflict intervenes within two years
after it accrues, and if good cause is shown, the claim may be pre-
sented not later than two years after that cause ceases to exist, or
two years after the war or armed conflict is terminated, whichever
is earlier;
(2) it did not occur at quarters occupied by the claimant within
the fifty States or the District of Columbia that were not assigned
to him or otherwise provided in kind by theUnited States; or
(3) it was not caused wholly or partly by the negligent or
wrongful act of the claimant, his agent, or his employee.
(d) Dates of beginning and ending of an armed conflict.
For the purposes of subsection (c) (1) of this section, the dates of
beginning and ending of an armed conflict are the dates established by
concurrent resolution of Congress or by a determination of the
President.
(e) Repealed. Pub. L. 91-311, July 8, 1970,84 Stat. 412.
(1) District of Columbia employees; personal property claims.
The provisions of sections 240 to 243 of this title apply in respect to
the damage to, or loss of, personal property incident to service of any
officer or employee of the government of the District of Columbia,
irrespective of whether the damage or loss occurs within or outside
the District of Columbia, except that in applying such provisions in
connection with the damage or loss of personal property of an officer
or employee of the government of the District of Columbia, the terms
"agency" and "United States" shall be held to mean the government
of the District of Columbia, and the term "head of agency" shall be
held to mean the Commissioner of the District of Columbia. (Pub. L.
88-558, §3, Aug. 31, 1964, 78 Stat. 767; Pub. L. 89-185, § 3(b),
Sept. 15, 1965, 79 Stat. 789; Pub. L. 90-561, Oct. 12, 1968, 82 Stat. 998;
Pub. L. 91-311, July 8, 1970, 84 Stat. 412.)
REFERENCES IN TEXT
The "effective date of this Act" as used in reference to claims arising after
such date and "enactment" as used in reference to claims settled before "enact-
ment" probably means August 31, 1964, the date of approval of Pub. L. 88--558,
rather than September 15, 1965, the date of* approval of Pub. L. 89-185, even
through Pub. L. 89-185 completely amended this section.
CODIFICATION
"Sections 240 to 243 of this title" in the original read "this Act" and referred
to Pub. L. 88-558. For complete classification of Pub. L. 88-558, see Short Title
note for "Military Personnel and Civilian Employee's Claims Act of 1964"
under section 240 of this title.
PAGENO="0360"
1042
AMENDMENTS
1970-Subsec. (e). Pub. L. 91-311 repealed subsec. (e) which directed the
head of each agency to report to Congress once a year on claims settled under
this section during the period covered by the report and required that the
report include for each claim the name of the claimant, the amount claimed, and
the amount paid.
1968-Subsec. (f). Pub. L. 90-561 added subsec. (f).
1965-Subsec. (a). Pub. L. 89-185 added subsec. (a). Former subsec. (a)
was redesignated as subsec. (b) (1) and amended and former subsec. (b) was
redesignated as subsec. (b) (2) and amended.
Subsec. (b) (1). Pub. L. 89-185 redesignated former subsee. (a) as subsec.
(b) (1), made its provisions subject to any policies the President may prescribe
to effectuate the purposes of this subsec. and removed the heads of the military
departments, the Secretary of the Treasury with regard to the Coast Guard,
and the Department of Defense from the classification of head of an agency
bound by subsec. (b).
Subsec. (b) (2). Pub. L. 89-185 redesignated former subsec. (b) as subsec.
(b) (2) and substituted "If a person named in this subsection is dead" and
"otherwise covered by this subsection" for "If a person named in subsection
(a) of this section is dead" and "otherwise covered by subsection (a) of this
section" respectively.
Subsec. (c). Pub. L. 89-185 substituted "A claim may be allowed under this
section" for "A claim may be allowed under subsectthn (a) of this section".
RECONSIDERATION AND RESETTLEMENT OF CLAIMS PREVIOUSLY SETrLED FOR $6,500
SoLELY BY REASON OF PREVIOUS $6,500 MAXIMUM LIMITATION
Section 4 of Pub. L. 89-185 provided that: "Sections 1 and 2 of this Act
[amending section 2732(a) of Title 10, Armed Forces, and former section 490(a)
of Title 14, Coast Guard, by raising to $10,000 the allowable claim in both sec-
tions] are effective July 2, 1952, and section 3 of this Act [amending the section
by raising to $10,000 the allowable claim in certain cases] is effective August 31,
1964, for the purpose of reconsideration of settled claims as provided in this
section [this note]. Notwithstanding section 2735 of title 10, United States Code,
section 490(a) of title 14, United States Code, the Act of October 9, 1940, chapter
788 (31 U.S.C. 71a), or section 4 of the Military Personnel and Civilian Em-
ployees' Claims Act of 1964, [section 242 of this title], a claim heretofore settled
in the amount of $6,500 solely by reason of the maximum limitation established
by section 1(a) of the Military Personnel Claims Act of 1945, as amended (70
Stat. 255), section 2732 (a) of title 10, United States Code, section 490(a) of
title 14, United States Code, or section 3(a) of the Military Personnel and
Civilian Employees' Claims Act of 1964 [subsec. (a) of this section] may, upon
written request of the claimant made within one year from the date of enactment
of this Act, [Sept. 15, 1965], be reconsidered and settled under the amendments
contained in sections 1, 2, and 3 of this Act."
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 240, 243 of this title.
§ 242. Same; conclusiveness of settlement.
Notwithstanding any other provision of law, the settlement of a
claim under sections 240 to 243 isfinal and conclusive. (Pub. L. 88-558.
§ 4,Aug. 31, 1964, 78 Stat. 768.)
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to insections 240, 241, 243 of this title.
§ 243. Same; limitation on agent or attorney fees; violation;
penalty.
No more than 10 per centum of the amount paid in settlement of
each individual claim submitted and settled under the authority of
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sections 240 to 243 of this title shall be paid or delivered to or received
by any agent or attorney on account of services rendered in connection
with that claim and the same shall be unlawful, any contract to the
contrary notwithstanding. Any person violating the provisions of sec-
tions 240 to 243 of this title shall be deemed quilty of a misdemeanor
and upon conviction thereof shall be fined in any sum not exceeding
$1,000. (Pub. L. 88-558, § 8, as added Pub. L. 89-185, § 5, Sept. 15,
1965, 79 Stat. 791.)
CODIFICATION
"Sections 240 to 243 of this title" in the orginal read "this Act" and referred
to Pub. L. 88-558. For complete classification of Pub. L. 88-558, see Short Title
note for "Military Personnel and Civilian Employees' Claims Act of 1964" under
section 240 of this title.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 241 of this title.
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Public Law 88-558
88th Congress, H. R. 6910
August 31, 1964
~Ln~it ____
76 STAT. 76i~
To provide for the settlement of claims against the United States by members
of the uniformed services and civilian officers and employees of the United
States for damage to, or loss of, personal property incident to their service, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may Nilitaiy Per~
be cited as the "Military Personnel and Civilian Employees' Claims sorinel and
Act of 1964". Civilian Its...
SEC. 2. As used in this Act- ployees' Claims
(1) "agency" includes an executive department, independent Act of 1964.
establishment, or corporation primarily acting as an instrumen- Definitions.
tality of the United States, but does not include ally contractor
with the United States;
(2) "uniformed services" means the Army, Navy, Air Force,
Marine Corps, Coast Guard, Coast and Geodetic Survey, and
Public Health Service; and
(3) "settle" means consider, ascertain, adjust, determine, and
dispose of any claim, whether by full or partial allowance or
disallowance.
SEC. 3. (a) Under such regulations as the head of an agency may Limitation,
prescribe, lie or his designee may settle and pay a claim arising after
the effective date of this Act against the United States for not more
than $6,500 made by a member of the uniformed services under the
jurisdiction of that agency or by a civilian officer or employee of that
agency, for damage to, or loss of, personal property incident to his
service. If the claim is substantiated and the possession of that prop-
erty is determined to be reasonable, useful, or proper under the circum-
stances, the claim may be paid or the property replaced in kind. This
subsection does not apply to claims settled before its enactment.
(b) If a person named in subsection (a) is dead, the head of the Deceased per~
agency concerned, or his designee, may settle and pay any claim made Sons.
by the decedent's surviving (1) spouse, (2) children, (3) father or
mother, or both, or (4) brothers or sisters, or both, that arose before,
concurrently with, or after the decedent's death and is otherwise
covered by subsection (a). Claims of survivors shall be settled and
paid in the order named.
(c) A claim may be allowed under subsection (a) for damage to, or Conditions.
loss of, property only if-
(1) it is presented in writing within two years after it accrues,
except that if the claim accrues in time of war or in time of armed
conflict in which any armed force of the United States is engaged
or if such a war or armed conflict intervenes within two years
after it accrues, and if good cause is shown, the claim may be
presented not later than two years after that cause ceases to exist,
or two years after the war or armed conflict is terminated, which-
ever is earlier;
(2) it did not occur at quarters occupied by the claimant within
the fifty States or the Dlstrict of Columbia that were not assigned
to him or otherwise provided in kind by the United States~ or
(3) it was not caused wholly or partly~ by the negligent or
wrongful act of the claimant, his agent, or his employee.
(d) For the purposes of subsection (c) (1), the dates of beginning
and ending of an armed conflict are the dates established by con-
current resolution of Congress or by a determination of the President.
(e) The head of each agency shall report once a year to Congress Report to
on claims settled under this section during the period covered by the Congress.
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Pub. Law 88-558 - 2 - August 31, 1964
78 STAT. 768,
report. The report shall include for each claim the name of the
claimant, the amount claimed, and the amount paid.
Sue. 4. Notwithstanding any other provision of law, the settlement
of a claim under this Act is final and conclusive.
10 USC 2731.. SEC. 5. Chapter 163 of title 10, United States Code, is amended,
2736, effective two years from the date of this Act, as follows:
70A Stat. 155. (1) Section 2735 is amended by striking out the figure "2732," and
the comma after the figure "2733".
`(2) The analysis is amended by striking out the following item:
"2732. Property loss: incident to service; members of Army, Navy, Air Force, or
Marine Corps and civilian employees."
Flepeals. (3) Section 2732 is repealed.
SEC. 6. Section 2 of the Act of ,June 7, 1956, chapter 376 (70 Stat.
72 Stat. 146].. 255), is repealed.
14 USC 461-511. SEC. 7. Chapter 13 of title 14, United States Code, is amended,
effective two years from the date of this Act, as follows:
(1) The analysis is amended by striking out the following item:
"490. Settlement of claims of military and civilian personnel." S
63 Stat. 534; (2) Section 490 is repealed.
72 Stat. 8~2. Approved August 31, 1964.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 460 (Comm. on the Judiciary).
SENATE REPORT No. 1423 (Comm. on the Judiciary).
CONGRESS IONAL RECORD:
Vol. 109 (1963): July 15, passed House.
Vol. 110 (1964): Aug. 14, considered and passed Senate, amended.
Aug. 20, House concurred in Senate amendment.
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MEDICAL RECOVERY ACT
(42 TJ.S.C. 1-3, 16 Stat. 593-594)
§ 2651. Recovery by United States.
(a) Conditions; exceptions; persons liable; amount of recovery;
subrogation; assignment.
In any case in which the United States is authorized or required by
law to furnish hospital, medical, surgical, or dental care and treatment
(including prostheses and medical appliances) to a person who is in-
jured or suffers a disease, after the effective date of this Act, under
circumstances creating a tort liability upon some third person (other
than or in addition to the United States and except employers of sea-
men treated under the provisions of section 322 of this Act of July 1,
1944 (58 Stat. 696), as amended (42 USC 249) to pay damages
the,refor, the United States shall have a right to recover from said
third person the reasonable value of the care atid treatm~nt so fur-
nished or to be furnished and shall, as to this right be subrogated to
any right or claim that the injured or diseased person, his guardian,
personal representative, estate, dependents, or survivors has against
such third person to the extent of the reasonable value of the care and
treatment so furnished or to be furnished. The head of the department
or agency of the United States furnishing such care or treatment may
also require the injured or diseased person., his guardian, personal rep-
resentative, estate, dependents, or survivors, as appropriate, to assign
his claim or cause of action against the third person to the extent of
that right or claim.
(b) Enforcement procedure; intervention; joinder of parties;
State or Federal court proceedings.
The United States may, to enforce such right, (1) intervene or join
in any action or proceeding brought by the injured or diseased personS,
his guardian, personal representative, estate, dependents, or survivors,
against the third person who is liable for the injury or disease; or (2)
if such action or proceeding is not commenced within six months after
the first day in which care and treatment is furnished by the United
States in connection with the injury or disease involved, institute and
prosecute legal proceedings against the third person who is liable
for the injury or disease, in a State or Federal court, either alone (in
its own name or in the name of the injured person, his guardian, per-
sonal representative, estate, dependents, or survivors) or in conjunc-
tion with the injured or diseased person, his guardian, personal repre-
sentative, estate, dependents, or survivors.
(c) Veterans' exception.
The provisions of this section shall not apply with respect to hos-
pital, medical, surgical, or dental care and treatment (including pros.-
theses and medical appliances) furnished by the Veterans' Adminis-
(~O47) . .
75-623 0 - 74 - pt. 3 - 24
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tration to an eligible veteran for a service-connected disability under
the provisions of Ohapter 17 of Title 38 ljnited States Code. (Pub.
L. 87-693, § 1, Sept. 25, 1962, 76 Stat. 593.)
REFERENCES IN TEXT
Effective date of this Act, referred to in subsec. (a), as the first day of the
fourth month following September, 1962, see effective date note under this
section.
EFFECTIVE DATE
Section 4 of Pub. L. 87-693 provided that: "This Act [enacting this chapter]
becomes effective on the first day of the fourth month following the month
[September, 1962] in which enacted."
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 2652, 2653 of this title.
§ 2652. Regulation.
(a) Determination and establishment of reasonable value of care
and treatment.
The President may prescribe regulations to carry out this Act,
including regulations with respect to the determination and establish-
ment of the reasonable value of .the hospital, medical, surgical, or
dental care and treament (including prostheses and medical appli-
ances) furnished orto be furnished.
(b) Settlement, release and waiver of claims.
To the extent prescribed by regulations under subsection (a) of this
section, the head of the department or agency of the United States
concerned may (1) compromise, or settle and execute a release of any
claim which the United States has by virtue of the right established
by section 1; or (2) waive any such claim, in whole or in part, for
the convenience of the Government, or if he determines that collection
would result in undue hardship upon the person who suffered the
injury or disease resulting in care or treatment described in section 1.
(c) Damages recoverable for personal injury unaffected.
No action taken by the United States in connection with the rights
afforded under this legislation shall operate to deny to the injured per-
son the recovery for that portion of his damage not covered hereunder.
(Pub. L, 87-693, § 2, Sept. 25, 1962, 76 Stat. 593.)
Ex. ORD. No. 11060. DELEGATION OF AUTHORITY TO PRESCRIBE REGULATIONS
Ex. Ord. No. 11060, Nov. 7; 1962, 27 F.R. 10925, provided:
Tinder and by virtue of the authority vested in me by Title 3 of the United
States Code and by Section 2(a) of the Act of September 25, 1962 (Public Law
87-693) [subse~. (a) of this section], it is hereby ordered as follows:
SECTION 1. The Director of the Bureau of the Budget shall, for the purposes of
the Act of September 25, 1962, [this chapter], from time to time, determine and
establish rates that represent the reasonable value of hospital, medical, surgical,
or dental care and treatment (including prostheses and medical appliances)
furnished or to be furnished.
SEC. 2. Except as provided in Section 1 of this order, the Attorney General
shall prescribe regulations to carry out the purposes of the Act of September 25,
1962 [this chapter].
JOHN P. KENNEDY.
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CHANGE OF NAME
The Bureau of the Budget was designated the Office of Management and Budget
and the offices of Director of the Bureau of the Budget, Deputy Director of the
Bureau of the Budget, and Assistant Directors of the Bureau of the Budget were
designated Director of the Office of Management and Budget. Deputy Director of
the Office of Management and Budget, and Assistant Directors of the Office of
Management and Budget, respectively, by Reorg. Plan No. 2 of 1970, eff. July 1,
1970, 35 FR. 7959 set out in the Appendix to Title 5, Government Organization
and Employees, which also transferred all records, property, personnel, and
funds of the Bureau to the Office of Management and Budget.
§ 2653~ Limitation or repeal of other provisions for recovery of
hospital and medical care costs.
This Act does not limit or repeal any other provision of law
providing for recovery by the United States of the cost of care and
treatment described in section 1. (Pub. L. 87-6~3, § 3, Sept. 25, 1962,
76 Stat. 594.)
This Act becomes effective on the first day of the fourth month
following the month in which enacted.
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Public Law 87-693
87th Congress, H, R. 298
September 25, 19 2
76~AS~U~
To provide for the recovery from tortiously liable third persons of the cost of
hospital and medical care and treatment furnished by the United States.
Be it enacted by the iSenate and Ilouce of Repreeentatit'ee of the
United States of America ia C~ngre~ ae~ernbled, That (a) in any Hospital and
case in which the United States is authorized or required by law to medical care,
furnish hospital, medical, surgical, or dental care and treatment third party
(including prostheses and medical appliances) to a person who is liability.
injured or suffers a disease, after the effective date of this Act, under
circumstances creating a tort liability upon some third person (other
than or in addition to the United States and except employers of sea-
men treated under the provisions of section 322 of the Act. of July 1,
1944 (58 Stat. 696), as amended (42 U.S.C. 249)) to pay damages
therefor, the United States shall have a right to recover from said
third person the reasonable value of the care and treatment so fur-
nisheci or to be furnished and shall, as to this right be subrocrated to
any right or claim that the injured or diseased person, his guardian,
personal representative, estate, dependents, or survivors has against
such third person to the extent of the reasonable value of the care and
treatment so furnished or to be furnished. The head of the depart.-
inent or agency of the United States furnishing such care or treatment.
may also require the injured or diseased person, his guardian, personal
representative, estate, dependents, or survivors, as appropriate, to
assign his claim or cause of action against the third person to the
extent of that right or claim.
(b) The United States may, to enforce such right, (1) intervene Legal pro-
or join in any action or proceeding brought by the injured or diseased ceedings.
person, his guardian, personal representative, estate, depemidents, or
survivors, against, the third person who is liable for the injury or
(lisease; or (2) if such action or proceeding is not commenced within
six months after the first day in which care and treatment is furnished
by the United States in connection with the injury or disease involved,
institute and prosecute legal proceedings against the third person who
is liable for the injury or disease, in a State or Federal court, either
alone (in its own name or in the name of the injured person, his
guardian, personal representative, estate, dependents, or survivors) or
in conjunction with the injured or diseased person, his guardian, per-
sonal representative, estate, dependents, or survivors.
(c) The provjsiomms of this section shall not. apply with respect to Veterans' treat-
hospital, medical, surgical, oi~ dental care and treatment (including ment, exception.
prostheses and medical appliances) furnished by the Veterans' Ad-
ministration to an eligible veteran for a service-connected disability
tinder the provisions of chapter 17 of title 38, United States Code. 72 Stat. 1140;
SEc. 2. (a) The President may prescribe regulations to carry out ~p.38l.
this Act, including regulations with respect to the determination and Re 1 t 1-6 3.
establishment of the reasonable value of the hospital, medical, surgical, g~ a ions.
or dental care and treatment (including prostheses and medical ap-
phances) furnished or to be furnished.
(b) To the extent prescribed by regulations under subsection (a), Settlement
the head of the department or agency of the United States concerned provisions.
may (1) compromise, or settle and execute a release of, any claim
which the United States has by virtue o~ the right established by
section 1; or (2) waive any such claim, in whole or in part, for the
convenience of the Government, or if he determines that collection
would result in undue hardship upon the person who suffered the
injury or disease resulting in care or treatment described in section 1.
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Pub. Law 87-693 -2-. September 25, 1962.
76 STAT. 594.
(c.) No action taken by the United States in connection with the
rights afforded under this legislation shall operate to deny to the in-
jured person the recovery for that. portion of his damage not covered
hereunder.
SEC. 3. This Act does not. limit or repeal any other provision of law
providing for recovery by the United States of the cost of care and
treatment described in section 1.
Effective date. SEC. 4. This Act becomes effective on the first day of the fourth
month following the month in which enacted.
Approved September 25, 1962.
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TITLE IV-FEDERAL TORT CLAIMS ACT
PART 1-SHORT TITLE AND DEFINITIONS
SHORT TITLE
SEc. 401. This title maybe cited as the "Federal Tort Claims Act".
DEFINITIONS
SEC. 402. As used in this title, the term-
(a.) "Federal agency" includes the executive departments and
independent establishments of the United States, and corporations
whose primary function is to act as, and while acting as, instrumental-
ities or agencies of the United States, whether or not authorized to
sue and be sued in their own names: Provided, That this shall not be
construed to include any contractor with the United States.
(b) "Employee of the Government" includes officers or employees
of any Federal agency, members of the military or naval forces of
the United States, and persons acting on behalf of a Federal agency
in an official capacity, temporarily or permanently in the service of
the United States, whether with or without compensation.
(c) "Acting within the scope of his office or employment", in the
case of a men~ter of the military or naval forces of the United States,
means acting in line of duty.
PART 2-ADMINISTRATIVE ADflJST3IENT OF TORT Ci~mrs AGAINST THE
UNITLD STATES
CLAIMS OF ~l,OOO OR LESS
SEC. 403. (a) Subject to the limitations of this title, authority is.
hereby conferred upon the head of each Federal agency, or his designee
for the purpose, acting on behalf of the United States, to consider,
ascertain, adjust, determine, and settle any claim against the United
States for money cely, accruing on and after January 1, 1945, on
account of damage to or loss of property or on account of personal
injury or death, where the total amount of the claim does not exceed
$1,000, caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment, under circumstances where the Ur~ited States, if
a private person, would be liable to the claimant for such damage, loss,
injury, or death, in accordance with the law of the place where the
act or omission oc.curred.
(b) Subject to the provisions of part 3 of this title, any such award
or determination shall be final and conclusive on all officers of the
Government, except when procured by means of fraud, notwithstanding
any other provision of law to the contrary.
(c) Any award made to any claimant pursuant to this section, and
any award, compromise, or settlement of any claim cognizable under
this title made by the Attorney General pursuant to section 413, shall
be paid by the head of the Federal agency concerned out of appropria-
tions that may be made therefor, which appropriations are hereby
authorized.
(d) The acceptance by the claimant of any such award, compromise,
or settlement shall be final and conclusive on the claimant, and shall
constitute a complete release by t.he claimant of any claim against the
United States and against the employee of the Government whose
act or omission gaverise to the claim, by reason of the same subject
matter.
REPORT -
SEC. 404. The. head of each Federal agency shall annually make a
report to the Congress of all claims paid by such Federal agency under
this part. Such report shall include the name of each claimaimt, a
state.nient of the amount claimed and the amount awarded, and a brief
description of the claim.
(1053)
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PART 3-SUITS ON TORT CI~IMs AGAINST TIlE Uxrrxn STATES
JURISDICTION
SEc. 410. (a) Subject to the provisions of this title. the United
States district court for the district wherein the plaintiff is resident
or wherein the act or omission complained of occurred, including the
United States district courts for the Territories and possessions of the
United States, sitting without a jury, shall have exclusive jurisdiction
to hear, determine, and render judgment on any claim against the
United States, for money only, accruing on and after January 1, 1945,
on account of damage to or loss of property or on account of personal
injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of
his office or employment, under circumstances where the United States,
if a private person, would be liable to the claimant for such damage,
loss, injury, or death in accordance with the law of the place where the
act or omission occurred. Subject to the provisions of this title, the
United States shall be liable in respect of such claims to the same
claimants, in the same manner, and to the same extent as a private
individual under like circumstances, except that the United States
shall not be liable for interest prior to judgment, or for punitive
damages. Costs shall he allowed in all courts to the successful claimant
to the same extent as if the United States were a private litigant,
except that such costs shall not include attorneys' fees.
(b) The judgment in such an action shall constitute a complete
bar to any action by the claimant, by reason of the same subject mat-
ter, ac~ainst the employee of the Government whose act or omission
gave rise to the claim. No suit shall be instituted pursuant to this
section upon a claim presented to any Federal agency pursuant to
part 2 of this title unless such Federal agency has made final disposi-
tion of the claim: Provided, That the claimant may, upon fifteen
days' notice given in writing, withdraw the claim from consideration
of the Federal agency and commence suit thereon pursuant to this
section: Pro~vided furt1~ei, That as to any claim so disposed of or
so withdrawn, no suit shall be instituted pursuant to this section for
any sum in excess of the amount of the claim presented to the Federal
agency, except where the increased amount of the claim is shown to
be based upon newly discovered evidence not reasonably discover-
able at the time of presentation of the claim to the Federal agency
or upon evidence of intervening facts, relating to the amount of
the claim. Disposition of any claim made pursuant to part 2 of
this title shall not be competent evidence of liability or amount of
damages in proceedings on such claim pursuant to this section.
PROCEDURE
SEC. 411. In actions under this part., the forms of process, writs,
pleadings, and motions, and the practice and procedure, shall be in
accordance with the rules promulgated by the Supreme Court pursuant
to the Act of June 19, 1934 (48 Stat. 1064) ; and the same provisions
for counterclaim and set-off, for interest upon judgments, and for
payment of judgments, shall be applicable as in cases brought in
the United States district, courts under the Act of March 3, 1887 (24
Stat. 505).
REVIEW
SEC. 412. (a) Final judgments in the district courts in cases under
this part shall be subject to review by appeal-
(1) in the circuit courts of appeals in the same manner and to
the same extent as other judgments of the district courts; or
(2) in the Court of Claims of the United States: Provided,
That the notice of appeal filed in the district court under rule 73
of the Thiles of Civil Procedure shall have affixed thereto the
written consent on behalf of all the appellees that the appeal be
taken to the Court of Claims of the United States. Such appeals
to the Court of Claims of the United States shall be taken within
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three months after the entry of the judgment of the district court,
and shall be governed by the rules relating to appeals from a
district court to a circuit court of appeals adopted by the Supreme.
Court pursuant to the Act of Jime 19, 1934 (48 Stat. 1064). In
such appeals the Court of Claims of the United States shall have
the same powers and duties as t.hose conferred on a circui.t court of
appeals in respect to appeals under section 4 Qf the Act of
February 13, 1925 (43 Stat. 939).
(h) Sections 239 and 240 of the Judicial Code, as amended, shall
apply to cases under this part in the circuit courts of appeals and in
the Court of Claims of the United States to the same extent as to cases
in a circuit court of appeals therein referred to.
COMPROMISE
SEC. 413. With a view to. doing substantial justice, the Attorney
General is authorized to arbitrate, compromise, or settle any claim
cognizable under this part, after the institution of any suit thereon,
with the approval of the court in which such suit is pending.
PART 4-PROVISIONS Co3n~Iox TO PART 2 AND PART 3
ONE-YEAR STATUTE OF LIMITATIONS
SEC. 420. Every claim against the United States cognizable under
this title shall be forever barred, unlesswithin one year after such claim
accrued or within one year after the date of enactment of this Act,
whichever is later, it is presented in writing to the Federal agency out
of whose activities it arises, if such claim is for a sum not exceeding
$1,000; or unless within one year after such claim accrued or within
one year after the date of enactment of this Act, whichever is later,
an action is begun pursuant to part 3 of this title. In the event that
a claim for a sum not exceeding $1,000 is presented to a Federal a.gency
as aforesaid, the time to institute a suit pursuant to part 3 of this title
shall be extended for a period of six months from the date of mailing
of notice to the claimant by such Federal agency as to the final dispo-
sition of the claim or from the date of withdrawal of the claim from
such Federal agency pursuant to section 410 of this title, if it would
otherwise expire before the end of such period.
EXCEPTIONS
SEC. 421. The provisions of this title shall not apply to-
(a) Any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or regu-
lation, whether or not such statute or re~ulation be valid, or based upon
the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a Federal acrency or an
employee of the Government, whether or not the discretion involved
be abused.
(b) Any claim arising out of the loss, miscarriage, or negligent
transmission of letters or ~iostal matter.
(c) Any claim arising in respect of the assessment or collection of
any tax or customs duty, or the detention of any goods or merchandise
by any officer of cust.oms or excise or any other law-enforcement officer.
(d) Any claim for which a remedy is provided by the Act of March
9, 1920 (U. S. 0., title 46, secs. 741-752, inclusive), or the Act of March
3, 1925 (U. S. 0., title 46, sees. 781-790, inclusive), relating to claims
or suits in admiralty against the United States.
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(e) Any claim arising out of an act or omission of any employee of
the Government in administering the provisions of the Trading with
the Enemy Act, as amended.
(f) Any claim for damages caused by the imposition or establish-
ment of a quarantine by the United States.
(g) Any claim arising from injury to vessels, or to the cargo, crew,
or passengers of vessels, while passing through the locks of the Panama
Canal or while in Canal Zone waters.
(Ii) Any claim arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.
(i) Any claim for damages caused by the fiscal operations of the
Treasury or by the regulation of the monetary system.
(j) Any claim arising out of the combatant activities of the mil-
itary or naval forces, or the Coast Guard, during time of war.
(k) Any claim arising in a foreign country.
(1) Any claim arising from the activities of the Tennessee Valley
Authority.
ATTORNEYS~ FEES
SEC. 422. The court rendering a judgment for the plaintiff pursuant
to part 3 of this title, or the head of the Federal agency or his designee
making an award pursuant to part 2 of this title, or the Attorney
General making a disposition pursuant to section 413 of this title,
as the case may be, may, as a part of the judgment, award, or settle-
ment, determine and allow reasonable attorney's fees, which, if the
recovery is $500 or more, shall not exceed 10 per centum of the amount
recovered under part 2, or 20 per centum of the amount recovered
under part 3, to be paid out of but not in addition to the amount of
judgment, award, or settlement recovered, to the attorneys represent-
ing the claimant. Any attorney who charges, demands, receives, or
collects for services rendered in connection with such claim any amount
in excess of that allowed under this section, if recovery be had, shall
be guilty of a misdemeanor, and shall, upon conviction thereof, be
subject to a fine of not more than $2,000 or imprisonment for not
snore than one year, or both.
EXCLUSIvENESS OF RFMEDT
SEc. 423. From and after the date of enactment of this Act, the
authority of any Federal agency to sue and be sued in its own name
shall not be construed to authorize suits against such Federal agency
on claims which are cognizable under part 3 of this title, and the
remedies provided by this title in such cases shall be exclusive.
CERTAIN STATUTES INAPPLICABLE
SEC. 424. (a) All provisions of law authorizing any Federal agency
to considei~, ascertain, adjust, or determine claims on account of dam-
age to or loss of property, or on account of personal injury or death,
caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or employ-
meat, are hereby repealed in respect of claims cognizable under part 2
of this title and accruing on and after January 1, 1945, including, but
*without limitation, the provisions granting such authorization now
contained in the following laws:
Public Law Numbered 375, Sixty-seventh Congress approved
December 28, 1922 (42 Stat. 1066; U. ~. C., title 31, sees. 215-~17).
PAGENO="0375"
1057
Pubic Law Numbered 267, Sixty-sixth Congress, approved June 5,
1920 (41 Stat.. 1054; U. S. C., title 33, sec. 853).
Public Law Numbered 481, Seventy-fourth Congress, approved
March20, 1936 (49 Stat.. 1184: U. S.C., title 31, sec. 224b).
Public Law Numbered 112. as amended, Seventy-eighth Congress,
approved July 3, 1943 (57 Stat. 372; U. S. C., title 31, sees. 223b, 223c,
and 223d).
Public Law Numbered 182, as amended, Sixty-fifth Congress,
approved July 1, 1918 (40 Stat. 705; U. S. C., title 34, sec. 600).
Section 4 of Public Law Ninnbered 18, Sixty-seventh Congress,
approved June 16, 1921 (42 Stat. 63), as amended by Public Law
Numbered 456, Seventy-third Congress, approved June 22, 1934
(48 Stat. 1207; U. S. C. title 31, sec. 224c).
(Ii) Nothing contained herein shall be deemed to repeal any pro-
vision of law authorizing any Federal agency to consider, ascertain,
adjust, settle, determine, or pay any claim on account of damage to or
loss of property. or on account of personal injury or death, in cases in
which such damage, loss, injury, or death was not caused by any negh-
gent or wrongful act or omission of an employee of the Government
while acting within the scope of his office or employment, or any other
claim not cognizable under part 2 of this title.
PAGENO="0376"
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MIGRANT HEALTH ACT
(42 u.S.C. Sec. 242h)
§ 242h. Health services for domestic agricultural migrants.
There are authorized to be appropriated not to exceed $7,000,000 for
the fiscal year ending June 30, 1966, $8~000,000 for the fiscal year end-
ing June 30, 1967, ~9,000,000 each for the fiscal year ending June 30,
1968, and the next fiscal year, $15,000,000 for the fiscal year ending
June 30, 1970, $20,000,000 for the fiscal year ending June 30, 1971,
$25,000,000 for the fiscal year ending June 30, 1972, and $30,000,000
for the fiscal year ending June 30, 1973, to enable the Secretary (1) to
make grants to public and other nonprofit agencies, institutions, and
organizations for paying part of the cost of (i) establishing and op-
erating family health service clinics for domestic agricultural migra-
tory workers and their families, including training persons (including
allied health professions personnel) to provide services in the estab-
lishing and operating of such clinics, and (ii) special projects to im-
prove and provide, a continuity in health services for and to improve
the health conditions of domestic agricultural migratory workers and
their families, including necessary hospital care, and including train-
ing persons (including allied health professions personnel) to provide
health services for or otherwise improve the health conditions of such
migratory workers and their families, and (2) to encourage and co-
operate in programs for the purpose of improving health services, for
* or otherwise improving the health conditions of domestic agricultural
r migratory workers and their families. The Secretary may also use
funds appropriated under this section to provide health services to
persons (and their families) who perform seasonal agricultural serv-
ices similar to the services performed by domestic agriculural migra-
tory workers if the Secretary finds that the provision of health serv-
ices under this sentence will contribute to the improvement of the
health conditions of such migratory workers and their families. For
the purposes of assessing and meeting domestic migratory agricultural
workers' health needs, developing necessary resources, and involving
local citizens in the development and implementation of health care
programs authorized by this section, the Secretary must be satisfied,
upon the basis of evidence supplied by each applicant, that persons
broadly representative of all elements of the population to be served
and others in the community knowledgeable about such needs have
been given an opportunity to participate in the development of such
programs, and will be given an opportunity to participate in the im-
plementation of such programs. (July 1, 1944, ch. 373, title III, § 310,
as adctect sept. 25, 1962, Pub. L. 87-692, 76 Stat. 592, and amended
(1059)
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1060
Aug. 5, 1965, Pub. L. 89-109, § 3, 79 Stat. 436; Oct. 15, 1968, Public
L. 90-57, title II, § 201, 82 Stat. 1006; Mar. 12, 1970, Pub. L. 91-209,
84 Stat. 52.)
AMENDMENTS
1970-Pub. L. 91-209 substituted for "Secretary" for "Surgeon General," au-
thorized appropriations of $20,000,000, $25,000,000 and $30,000,000 for the fiscal
years ending June 30, 1971, June 30, 1972, and June 30, 1973, respectively, macic
the bringing about of continuity, in health services one of the objects of the
Secretary's grants for special projects, inserted parenthetical reference to allied
health professions personnel, authorized the Secretary to provide funds towards
health services for those performing seasonal agricultural services, and provided
for the representation of all elements of the migratory worker population, whose
health needs are to be met, in the development of health programs and that
such persons be given an opportunity to participate in the implementation of
such programs.
1968-Pub. L. 90-574 added provisions authorizing appropriations of $3,.
000,000 for the fiscal year ending June 30, 1969, and $15,000,000 for the fiscal year
ending June 30, 1970.
1965-Pub. L. 89-109 substituted "not to exceed $7,000,000 for the fiscal year
ending June 30, 1966, $8,000,000 for the fiscal year ending June 30, 1967, and
$9,000,000 for the fiscal year ending June 30, 1968" for "for the fiscal rear ending
June 30, 1963, the fiscal year ending June 30, 1964, and the fiscal year ending
June 30, 1965, such sums, not to exced $3,000,000 for any year, as may be be
necessary" and inserted "including necessary hospital care, and" in cl. (1) (Ii).
SHORT TITLE
Section 1 of Pub. L. 89-109 provided: "That this Act [amending this section
and sections 246, 247a arid 247b of this title] may be cited as the `Community
Health Services Extension Amendments of 1905'."
ABOLITION OF OFFICE OF SURGEON GENERAL
The Office of the Surgeon General was abolished by section 3 of 1966 Retrg.
Plan No. 3 eff. June 25, 1966, 31 P.R. 8855, 80 Stat. 1610, and all functions
thereof were transferred to the Secretary of Health, Education, and Welfare
by section 1 of 1966 Reorg. Plan No. 3 set out as a note under section 202 of this
title.
DUPLICATION OF BENEFITS
No grant, award, or loan of assistance to any student under any Act amell(ied
by Pub. L. 90-574, which amended this section, to be considered a duplication
of benefits for the purposes of section 1781 of Title 38, Veterans' Benefits, see
section 504 or Pub. L. 90-574, set out as a note under section 1781 of Title 38.
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