PAGENO="0001" 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 PAGENO="0002" 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) PAGENO="0003" 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) PAGENO="0004" 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) PAGENO="0005" PART III EMPLOYEE BENEFITS AND SAFETY AND HEALTH (V) PAGENO="0006" PAGENO="0007" 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) PAGENO="0008" 690 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. PAGENO="0009" 691 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 PAGENO="0010" 692. 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- PAGENO="0011" 693 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 PAGENO="0012" ~694 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- PAGENO="0013" 695 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 PAGENO="0014" 696. 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 PAGENO="0015" 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 PAGENO="0016" 698 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" 701 (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" 702 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. PAGENO="0026" 708 (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- PAGENO="0028" 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. PAGENO="0029" 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 PAGENO="0030" 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 PAGENO="0031" 713 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 PAGENO="0032" 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 PAGENO="0033" 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 PAGENO="0034" 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. PAGENO="0035" 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 PAGENO="0036" 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 PAGENO="0037" 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" 727 (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" 735 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" 736 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" 739 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" 740 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" 741 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" 742 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. PAGENO="0062" 744 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. PAGENO="0063" 745 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" 746 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. PAGENO="0068" 750 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" 751 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" 752 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" 753 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. PAGENO="0073" 755 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" 756 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" 757 - 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" 758 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. PAGENO="0077" 759 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" 760 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. PAGENO="0079" 761 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. PAGENO="0080" 762 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. PAGENO="0081" 763 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 PAGENO="0082" 764 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. PAGENO="0083" 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) PAGENO="0084" 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 PAGENO="0085" 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. PAGENO="0086" PAGENO="0087" 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) PAGENO="0088" 770 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. PAGENO="0089" 771 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. PAGENO="0090" 772 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) PAGENO="0091" 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, PAGENO="0092" 774 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. PAGENO="0093" 775 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. PAGENO="0094" 776 5 (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- PAGENO="0095" 777 6 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" 778 7 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- PAGENO="0097" 779 8 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" 780 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 PAGENO="0099" 781 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" 782 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" 783 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" 785 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" 786 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 PAGENO="0105" 787 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" 788 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" 789' 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" 790 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" 791 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" 792 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" 793 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. PAGENO="0112" 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" 795 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" 797 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" 799 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" 800 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" 803 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" 805 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" 807 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" 812 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" 813 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" * 815 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" 828 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" 832 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" 833 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" 837 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; PAGENO="0173" 855 (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" 856 (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" 857 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" 887 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 PAGENO="0226" 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) PAGENO="0227" 909 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" 910 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" 913 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" 914 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" 916 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" 917 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" 918 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" 919 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" 920 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. PAGENO="0247" 929 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. PAGENO="0248" -2- "(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. PAGENO="0249" 931 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. PAGENO="0250" 932 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. PAGENO="0251" 933 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. PAGENO="0252" 934 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 PAGENO="0253" 935 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 PAGENO="0254" 936 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" 955 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- PAGENO="0276" 958 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 PAGENO="0277" 959 September 16, 1966 - 7 - Pub. Law 89-577 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 PAGENO="0278" 960 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 PAGENO="0279" 961 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. PAGENO="0280" 962 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 PAGENO="0281" 963 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, PAGENO="0282" 964 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. PAGENO="0283" 965 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. PAGENO="0284" PAGENO="0285" 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) PAGENO="0286" 968 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. PAGENO="0287" 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. PAGENO="0288" 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. PAGENO="0289" 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 PAGENO="0290" 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 PAGENO="0292" 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 PAGENO="0293" 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 PAGENO="0294" 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" 1009 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 PAGENO="0330" 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 PAGENO="0331" 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" 1033 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 PAGENO="0361" 1043 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. PAGENO="0362" 1044 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. PAGENO="0363" 1045 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. PAGENO="0364" PAGENO="0365" 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 PAGENO="0366" 1048 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. PAGENO="0367" 1049 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. PAGENO="0368" 1050 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. PAGENO="0369" 1051 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. PAGENO="0370" PAGENO="0371" 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) PAGENO="0372" 1054 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 PAGENO="0373" 1055 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. PAGENO="0374" 1056 (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" PAGENO="0377" 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) PAGENO="0378" 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. 0