[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
  BUILDING A BETTER PARTNERSHIP: EXPLORING THE MINE SAFETY AND HEALTH 
       ADMINISTRATION'S REGULATION OF SOUTHERN APPALACHIAN MINING

=======================================================================



                             FIELD HEARING

                               before the

                         COMMITTEE ON OVERSIGHT

                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 21, 2013

                               __________

                           Serial No. 113-46

                               __________

Printed for the use of the Committee on Oversight and Government Reform


         Available via the World Wide Web: http://www.fdsys.gov
                      http://www.house.gov/reform



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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee       CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona               GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania         JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee          MATTHEW A. CARTWRIGHT, 
TREY GOWDY, South Carolina               Pennsylvania
BLAKE FARENTHOLD, Texas              MARK POCAN, Wisconsin
DOC HASTINGS, Washington             TAMMY DUCKWORTH, Illinois
CYNTHIA M. LUMMIS, Wyoming           ROBIN L. KELLY, Illinois
ROB WOODALL, Georgia                 DANNY K. DAVIS, Illinois
THOMAS MASSIE, Kentucky              PETER WELCH, Vermont
DOUG COLLINS, Georgia                TONY CARDENAS, California
MARK MEADOWS, North Carolina         STEVEN A. HORSFORD, Nevada
KERRY L. BENTIVOLIO, Michigan        MICHELLE LUJAN GRISHAM, New Mexico
RON DeSANTIS, Florida

                   Lawrence J. Brady, Staff Director
                John D. Cuaderes, Deputy Staff Director
                    Stephen Castor, General Counsel
                       Linda A. Good, Chief Clerk
                 David Rapallo, Minority Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 21, 2013....................................     1

                               WITNESSES

Mr. Sam Bratton, President, North Carolina Aggregates Association
    Oral Statement...............................................    10
    Written Statement............................................    13
Mr. Mack McNeely, Vice President, LBM Industries and Nantahala 
  Talc and Limestone
    Oral Statement...............................................    18
    Written Statement............................................    20
Mr. Jeff Stoll, Safety and Health Manager, the Quartz Corporation
    Oral Statement...............................................    28
    Written Statement............................................    30
Mr. Marvin Lichtenfels, Deputy Administrator for Metal/Non-Metal, 
  Mine Safety and Health Administration
    Oral Statement...............................................    47
    Written Statement............................................    49

                                APPENDIX

A Letter from Cherie Berry Submitted for the Record by Rep. 
  Meadows........................................................    76
A Statement by Rep. Virginia Foxx Submitted for the Record by 
  Rep. Meadows...................................................    78
A Statement for the Record by C. Howard Nye, Martin Marietta 
  Materials, Submitted by Rep. Meadows...........................    79
A Statement for the Record by the National Stone, Sand and Gravel 
  Association (NSSGA)............................................    80
MSHA's Response to Questions the Committee on OGR Submitted for 
  the Record.....................................................    84
Pictures of Frayed Seat Belt.....................................    89
Letters and emails from Caterpillar (and Dealer, Carolina Cat) 
  Regarding Safe Access/Fall Protection..........................    92


  BUILDING A BETTER PARTNERSHIP: EXPLORING THE MINE SAFETY AND HEALTH 
       ADMINISTRATION'S REGULATION OF SOUTHERN APPALACHIAN MINING

                              ----------                              


                             FIELD HEARING

                         Friday, June 21, 2013

                   House of Representatives
              Subcommittee on Government Operations
               Committee on Oversight and Government Reform
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 9:38 a.m., in 
Mitchell County Historic Courthouse, 11 North Mitchell Avenue, 
Bakersville, NC, Hon. John L. Mica [chairman of the 
subcommittee] presiding.
    Present: Representatives Mica and Meadows.
    Also Present: Representatives Roe and Griffith.
    Staff Present: Joe Brazauskas, Counsel; John Cuaderes, 
Deputy Staff Director; Linda Good, Chief Clerk.
    Mr. Mica. Good morning. I would like to welcome you to the 
Subcommittee on Government Operations hearing this morning. We 
are pleased to be in Bakersville, North Carolina. The topic of 
today's subcommittee hearing is Building a Better Partnership: 
Exploring the Mine Safety and Health Administration's 
Regulation of Southern Appalachian Mining.
    I am Congressman John Mica. I am privileged to chair the 
Government Operations Subcommittee of the United States House 
of Representatives' full Committee on Government Oversight and 
Reform.
    I am joined today by actually the Vice Chairman of our 
panel, and we are an investigative body of Congress, the chief 
investigative panel of the House of Representatives' Oversight 
and Reform Committee, and our specific Subcommittee on 
Government Operations has very broad jurisdiction to 
investigate various waste, fraud, abuse, and programs of the 
Federal Government. The Vice Chair of that subcommittee, as I 
said, is the congressman from this district in North Carolina, 
Mark Meadows. We would not be here if it wasn't for his 
request. Each of the subcommittee members do get the 
opportunity to choose the topics that need review by the panel, 
and Congressman Meadows requested that I conduct this hearing 
and this review of mine safety, which is particularly 
important, as you know, to this district and this state, and to 
the country.
    So we are pleased to be here at his request, and also have 
him. He is a member and now a leader of the committee. That is 
pretty good, too, considering I think this is his first term to 
be the Vice Chair of a subcommittee of Congress. So, thank you 
for your invitation and also fine work. We will report back to 
his citizens.
    Being the most senior member of the panel, you wake up one 
day and you find out that everybody to you is your junior. But 
after 21 years on this committee I have seen many members, and 
we are very pleased with the quality of your representative and 
his participation, full participation and commitment that he 
has provided to our committee. So, I thank him again for his 
work and his leadership role.
    Before getting down to business, I think I will first 
introduce--actually, this is quite an historic gathering. I 
can't remember a field hearing where we had four members from 
four different states. I am from Florida. In addition to the 
representative from North Carolina, we are also honored to have 
with us a very distinguished member from Tennessee, right 
across the way, Dr. Phil Roe. I have had the opportunity to 
work with him. He is a member of the Education Workforce 
Committee, and also the Veterans Affairs Committee, and he 
serves on one of the oversight and investigations panels and 
chairs the Subcommittee on Health, Employment, Labor, and 
Pensions. So it is quite fitting that we are joined by a nearby 
colleague of Mr. Meadows in this district. So welcome, Dr. Roe, 
Congressman Roe, to this historic district.
    And then again, we are joined by a Virginia congressman, 
Morgan Griffith. He is a member of the House Energy and 
Commerce Committee, and the subcommittees on health, energy, 
power, and also part of an oversight and investigations panel 
in that particular subcommittee.
    I want to welcome both Representative Griffith and 
Representative Roe. Since they are not members of this panel, I 
ask unanimous consent that both be allowed to participate in 
this subcommittee hearing. Without objection, so ordered.
    So the order of presentation and business this morning will 
be opening statements by members, and I will begin that 
process. Then I will yield to the Vice Chair, Congressman 
Meadows, Mr. Roe, and then Mr. Griffith.
    Then we have two panels, I believe, this morning. First we 
are going to hear from the panel that is assembled, and then we 
have another panel consisting of one witness.
    So that will be the order of business today. And with that, 
I will begin my few opening remarks.
    Again, I thank Mr. Meadows for your leadership and for 
having us in your district, this beautiful area of North 
Carolina, and also the United States. My family and I had an 
opportunity over the years to visit Mitchell County and spend a 
lot of time over in Spruce Pine in a place called Don's. I 
think they used to have a double cheeseburger ----
    [Laughter.]
    Mr. Mica. I think that was one of the great losses. Also, I 
think Mr. McHenry had that area first. I practically had tears 
in my eyes after he told me that Spruce Pine was a core of that 
mountain some years ago. It is a great area, and I am pleased 
to be here in the county seat.
    The purpose of our committee, again, that I will touch 
briefly in my introductory remarks, is the chief investigative 
panel of the House of Representatives. The history of this 
committee, the Government Oversight and Reform, I think you 
have probably seen Mr. Meadows and myself. Most recently we 
have been kind of jammed on scandals in Washington. I am trying 
to remember where we left off, Mark. We started on Benghazi, 
and then we got shifted to IRS, and it looks like we have NSA 
around the corner, but this panel is very important.
    The Founding Fathers were always skeptical of government, 
having come from colonial status where the parliament and the 
king had imposed a lot of restrictions on their life and 
freedom and their rights. In fact, it is kind of interesting if 
you look at the Declaration of Independence, you find they are 
declaring at the very beginning independence from England and 
the parliament and the king, but then most of the Declaration 
is citing the abuses of the British government, the king and 
the parliament. It is kind of funny. If you read through some 
of that, it is almost like why we are here today.
    One of my favorites is he sent out his agents among us to 
harass and give, at that time, the colonists a rough time with 
bureaucracy and government. From that time forward, I think the 
evolution of our government and our agencies has been to try to 
keep government under control and sort of at bay. People had 
always sought freedom and independence and supported enterprise 
and production of the individual.
    But that is--part of the history of this panel was they 
started Congress and had authorizers and appropriators, some of 
whom created the programs. It started with the Constitution, 
the Congress, and we create the programs through authorizing 
committees, and then we also fund them through appropriating 
committees.
    Well, the Founding Fathers, way back as early as the 
beginning of creating any of these government agencies, never 
really trusted the authorizers and appropriators and created 
the predecessor of our committee, which is Government Oversight 
and Reform. And they wanted to check to see how the programs 
were working, how the money was spent, and delegate the intent 
of Congress.
    So that, briefly, is the background of how our committee 
evolved to today and the reason we are here. So when you are 
trying to raise your family, make a living and survive all the 
various activities that government at various levels imposes on 
you, our job is to represent you and again make certain that we 
get it right.
    So with that background on the committee, today's topic is 
mine safety, and it is incredibly important to the economy of 
this community and this state, as I said, and that is why Mr. 
Meadows brought us here. Just driving through here from Spruce 
Pine, if you can't see the importance of mining to this region, 
you must have your blinders on or your shades are down. But 
this is a very active mining area for the state, and it is 
important I think that we strike a balance between promoting 
safety, which everyone is encouraged to make certain we get 
right, but also the balance of being able to conduct commerce 
and do both in a positive fashion.
    So today we are going to hear from three metal mining 
operators in North Carolina, and they are going to tell us some 
of their stories about the way our Federal Mine Safety and 
Health Administration has impacted their business. We will hear 
again about some of the problems related to enforcement 
practices and other issues that have proven difficult sometimes 
for them to conduct their business and industry under our mine 
safety agency. It is an important agency and it has an 
important goal in ensuring that mines and miners are safe and, 
again, that people are secure in their employment and safety.
    However, the mine safety agency, like many Federal 
agencies, is a powerful government agency. They have the 
responsibility to conduct inspection of every metal and 
nonmetal mine two times a year. During these inspections, 
agents can write citations for violations, as we have heard, 
and they can also impose penalties on the mine operators.
    We should also note that this Federal agency can enter a 
mine property at any time if the agency feels it should under 
the law. So it has a lot of discretion in entering and 
monitoring the activities and businesses of mining. Of course, 
there will always be a friction between the regulators and the 
folks that they regulate. What we try to do is sort it out and 
achieve some balance.
    However, it should be the goal of a Federal agency such as 
the mine safety agency to partner with the community to work to 
achieve a common goal of providing a safe workplace and 
environment, and also a thriving mining industry. Once you 
close the mines down and people aren't working, you don't have 
to worry about regulating an industry or people working.
    However, the past eight years has been a change in the 
philosophy of the mine safety agency, and we want to examine 
again what is taking place and see if fairness prevails for all 
parties concerned. Since 2005, the total citations have 
increased some 550 percent, and that is something also we want 
to look at today.
    We believe also that some of the folks that have received 
these fines, may have done so in an inordinate amount of fines. 
And also, again, we heard about the significant increase in the 
fines. So I think that is something else we need to review in 
this hearing today and see if we have gotten out of balance in 
the whole process.
    Moreover, I called this hearing to allow operators from 
North Carolina to tell Congress and their representatives how 
they feel the mine safety agency has operated. I will ask them 
and hear from them about how they feel it has worked with them, 
the authority granted by Congress, and again see what makes 
sense and how we can both be responsible with safety but also 
have a balance that allows us to continue to have this industry 
thrive and the business succeed.
    So I want to thank the witnesses for being with us today. I 
am particularly grateful we have two other states represented, 
and the representatives of two nearby districts joining us.
    Now what I will do is I will yield to our Vice Chair and 
thank him again for his leadership. He is a special kind of guy 
and has a business background like myself, and I think he gets 
it. He also, I will have to say, got us here this morning, and 
we are delighted to be here.
    So I will yield to the gentleman from North Carolina, our 
Vice Chair, Mr. Meadows.
    Mr. Meadows. Thank you, Mr. Chairman. You have got to be 
coming here to get here, and so it is a real encouragement just 
to see your involvement, and I want to start off first by 
saying thank you for being here, truly for showing up on this 
important issue. I thank the witnesses for coming today and 
being willing to testify and take time out.
    Mining is a critical part of North Carolina's economy. We 
have over 800 mining permits throughout the state and over 
100,000 acres. It brings in directly $1 billion in revenue, and 
if you take that out in terms of the total economy, the effect 
of mining is somewhere around $3.5 billion.
    It accounts for over 10,000 jobs directly, and the indirect 
implications that we know, obviously here in Mitchell County, 
but throughout the district, some 27,150 indirect jobs as part 
of the mining industry. And these are not low-paying jobs. The 
average salary in the mining industry is right at $50,000. So 
these are good-paying jobs that are good for the economy.
    But I also want to talk about the importance of mining just 
a little bit because some of the people may not know how 
critical it is. Crushed stone, obviously, is one of our major 
raw materials that we look at. But that is not the only thing 
that we mine. Ninety percent, 90 percent of the world's high-
quality quartz comes from western North Carolina. In addition 
to that, some 60 percent of the United States' feldspar comes 
from North Carolina, as well.
    And in addition to that, some of the clay and other bricks 
used--and we get an unbelievable amount of resources that come 
from western North Carolina. So the aggregates industry plays a 
huge role in our economy. Sand and gravel, as we start to look 
at it, we have people here who will be testifying to that 
point, the construction of highways and roads, not only in 
North Carolina but across America. As a former developer, I 
know firsthand how critical that is, having access to that. One 
of our people here, we have used their product here, Mr. 
McNeely. As he testifies, he had a quarry very close to some 
property that I own.
    But since coming to Washington, I have heard from not only 
many mine operators that are experiencing problems, but before 
I got there I heard story after story saying, you know, you 
really need to look into that.
    So we want to make sure that we provide a safe working 
environment. This is not about doing something in an unsafe 
manner. But we also need to make sure that regulations don't 
overburden what we have. MSHA has an important job of keeping 
our miners safe, but what I have been hearing, and we look 
forward to hearing testimony today, is really kind of a 
direction that has changed from training to more of 
enforcement.
    We called this hearing today, Mr. Chairman, both to hear 
directly from the North Carolina mine operators what the impact 
of MSHA on their businesses has been so that they can tell 
their stories, the frustrations they have dealing with Federal 
agencies and whose philosophy seems to sort that out. But we 
are not asking necessarily MSHA to relax their standards as 
much as they are as providing a consistent standard for safety, 
something that we can hear as we were looking at things. It is 
knowing that standard and knowing that that standard is fair 
and how we are able to deal with that, and that it doesn't hurt 
jobs ultimately because that is what it is all about.
    We are pleased today to have representatives from MSHA 
here. We look forward to hearing your testimony as well in 
terms of maintaining safety.
    But at this time, I would like to take the opportunity to 
thank Chairman Mica for calling this hearing and coming to my 
district. At the beginning of Congress, I told the Chairman how 
important this issue was to my people back home, and in an 
environment where a lot of times people don't listen, the 
Chairman said, well, if it is that important, we need to have a 
hearing and shed some light on some of that, so he is here 
today to do that. So I wanted to thank the Chairman.
    Also, I want to personally thank Chairman Congressman Roe 
from Tennessee who has been a good friend early on. He 
understands these issues. I am humbled by this because I am on 
a panel today with three chairmen of subcommittees. So to have 
this kind of historic--I think the Chairman mentioned it is an 
historic day. To have four members of Congress from four 
different states, to have three chairmen on a subcommittee 
hearing just shows how important it is. So I would like to 
thank him, as well.
    And Chairman Congressman Griffith from Virginia knows 
mining well. We talked on the House floor just the other day 
about some of the issues that he deals with in Virginia. So 
having reasonable MSHA regulations are critical.
    I would like to ask the Chairman to just highlight three 
individual letter records and ask him for his consent to have 
them for the record, if you don't mind, Mr. Chairman. One of 
them is from the Commissioner of Labor, Cherie Berry, who is 
very concerned that we have gone to an enforcement mechanism 
from a training. She has her head of mining and safety, William 
Garrenger, here today. I thank him for coming. So I would ask, 
Mr. Chairman, if we could submit this record, this letter for 
the record.
    In addition to that, I have a letter from Congresswoman 
Virginia Foxx, who knows this area well, is from Avery County 
originally. She serves in Watauga in Congress, in Watauga and 
going over. She is also on the subcommittee that actually has 
the legislative jurisdiction, along with Congressman Roe, over 
this particular area, and she has expressed her real concern 
that we have gone from a safety training environment to an 
enforcement environment and has sent a letter in support of 
this hearing as well.
    And then finally, we have a letter from the Chairman of the 
Board of Directors of the National Stone, Sand and Gravel 
Association, which highlights some of the issues that they are 
dealing with as an association and some of these, and, Mr. 
Chairman, I would ask that you would consider these for the 
record.
    Mr. Mica. Without objection, both the statements from the 
North Carolina Secretary of Labor, Representative Foxx, and --
--
    Mr. Meadows. Yes. Yes, sir.
    Mr. Mica.--will all be included as part of the record. 
Without objection, so ordered.
    Mr. Meadows. And with that, Mr. Chairman, I yield back.
    Mr. Mica. Well, thank you again. And, Mr. Meadows, let me 
ask you, if you would, as a courtesy before I go to the other 
members, I had an opportunity to meet the mayor and the 
sheriff. Is the mayor here? Would you like to introduce your 
mayor? And I thank him also. I love history, and to be in the 
1907, I think it is, historic courthouse, it is quite a treat 
to be here and to see the great work they have done in 
restoring this historic building. But would you like to 
introduce him?
    Mr. Meadows. Thank you, Mr. Chairman.
    A special thank-you to our mayor that has done such a great 
job here. When we talk about North Carolina, we talk about real 
hospitality. So our mayor has done that, and I just applaud 
him.
    And our sheriff, thank you for the security.
    [Applause.]
    Mr. Mica. Thank you again, Representative Meadows.
    Now I yield to Dr. Roe. You are recognized. Welcome.
    Mr. Roe. Thank you, Chairman, for the opportunity to speak, 
and also I want to brag on Chairman Mica. He just three years 
ago, I guess, came over to my district, and we all had some 
transportation issues. At that time he chaired the 
Transportation and Infrastructure, a huge committee on Capitol 
Hill. Chairman, thank you for what you're doing. I really do 
appreciate it.
    Mr. Mica. Thank you. It is great to help. We worked on the 
transportation bill, which was not easy. I described it one 
time as trying to give--like trying to give birth to a 
porcupine.
    [Laughter.]
    Mr. Mica. If you think it is easy, you should have been 
with the four of us yesterday on the floor debating the farm 
bill. That was not a successful delivery.
    [Laughter.]
    Mr. Mica. But I thank you again for all of your help and 
coming to this hearing. And again, it is rare that you get 
representatives, people with concurrent responsibilities in 
their districts and interests that all mesh and bringing them 
together for a field hearing like this. So, thank you.
    Mr. Roe. Well, I want to thank the crowd for being here 
today. This is what democracy is all about, to bring the 
government to the people. And the panel, thank you. I wanted to 
thank you because when we hold hearings in Washington, we have 
people who are really professional testifiers, and all of their 
testimony is very slick and so forth, and you all got straight 
to the point, where a country boy like me can understand you. I 
appreciate that very much.
    And I also want to thank Mark and Morgan Griffith. We have 
become fast and furious friends. You have elected a great 
representative for North Carolina.
    [Applause.]
    Mr. Roe. I certainly know this issue very well in North 
Carolina because all of my district parallels North Carolina, 
from Mountain City all the way to Gatlinburg. So I am over here 
all the time, and you probably won't recognize me. I'll either 
have a golf club in my hand or I will have hiking boots on, so 
I am over here to have fun when I come to North Carolina.
    I want to introduce a very dear friend of mine that I have 
known for 25 years, Bill Slate sitting right back there. Bill 
called on me in my medical practice for 25 years, and I 
appreciate your friendship. One of the things that made it a 
lot easier for me to get elected to Congress with these three 
gentlemen was that I delivered my own voters, so it helped a 
lot.
    [Laughter.]
    Mr. Roe. It worked out pretty well.
    [Laughter.]
    Mr. Roe. The reason I enjoy these hearings and, Mr. 
Chairman, the reason that I will jump at the chance to come, I 
have held numerous hearings outside of Washington, and this is 
where you really--and I can assure you, inside of 395, 
something is wrong with the oxygen, I can tell you. It doesn't 
work right. Out here, you can actually find out what is going 
on with real people, real jobs, and about these mandates.
    And, Mayor, I want to tell you and the sheriff, if I 
possibly can--I was the mayor of Johnson City before I went to 
the Congress. That was my political job. I never served in any 
other political job. I would never vote for an unfunded mandate 
in local government if I know what I am doing. Now, these 
1,000-page bills, sometimes I might get through them. But I had 
enough of them dropped on me to understand what you are dealing 
with here on the local level.
    So I want to thank you for the work the local people do. 
The best government in the world is local government, and that 
is one of the reasons that we are here today, is to bring the 
Federal Government to the local level. And we are going to 
learn a lot today, a lot more than I would learn in an hour or 
so if I had stayed in Washington.
    And the other reason I am here, Mark invited me, and 
anything that I can do to support him; and secondly, the MSHA 
comes under my committee of Education and the Workforce, which 
is why I am here today.
    And I yield back, Mr. Chairman.
    Mr. Mica. Thank you again for being with us.
    Now the gentleman from Virginia's 9th District, Congressman 
Griffith, welcome, and you are recognized.
    Mr. Griffith. Thank you, Chairman. I do appreciate you 
doing this. These field hearings are so important, as 
Congressman Roe said. He came to one that we had last year in 
my district. This is a way--a lot of folks can't make it to 
D.C. to get their opinions heard. This is a way that they not 
only get their opinions heard by some congressmen, but also all 
of this goes into the official record. So it is good to get it 
on the record, how people are feeling, and I do appreciate you 
taking the time to be here, Mr. Chairman.
    You come from the farthest away of any of us. I will tell 
you that, as Congressman Meadows said, he said you have to be 
coming here to get here. I know that feeling, because if you 
look at the map and you go as the crow flies from my house down 
here, it is a pretty straight line.
    [Laughter.]
    Mr. Griffith. In fact, 221 goes through my district, which 
is right close to here. But that is not the way you get here.
    [Laughter.]
    Mr. Griffith. I came through Phil's district.
    [Laughter.]
    Mr. Griffith. I circled down 81 and circled back through 
Tennessee to get here because when you have a mountain 
district, you understand these things. That is how you get 
here. So it is like trying to get--about a third of my district 
land mass, I go through Phil's district. I drop down and go 
around a mountain because you can go through the mountains. It 
just will take you an extra 45 minutes to an hour. So I am glad 
to be with you all today.
    I am so glad to be here. My district comprises a lot of 
mining operations. Most of it is coal, but we also have a 
significant amount of aggregates mined in my district of 
southwest Virginia, and so it is very important. And when I saw 
that there was this opportunity to come here and to learn a 
little bit about what is going on with MSHA, because my folks 
are always talking about MSHA, but I serve on the Energy and 
Commerce Committee, so most of my time has been spent defending 
the rights of citizens to have affordable energy--aka coal--and 
use that. But I also hear complaints on a regular basis about 
MSHA, so I am glad that I am here to share that.
    I will say that Dr. Roe got to Congress a lot easier than I 
did, because when you deliver your clients, or your voters--
your clients are your voters, and you deliver them, that is a 
good thing. I am a criminal defense attorney.
    [Laughter.]
    Mr. Griffith. So about half of my clients couldn't vote for 
me.
    [Laughter.]
    Mr. Griffith. But I am glad to be with you. As Chairman 
Mica said, I serve on the Oversight Subcommittee of Energy and 
Commerce, and sometimes it gets confusing because your 
committee, as you know, Representative Meadows and Chairman 
Mica, you all have a big oversight committee. Then each one of 
the other standing committees in Congress has an oversight 
committee that oversees particular matters under their 
jurisdiction. So I am glad to be sitting with the folks who sit 
on the big oversight committee. They have been getting all the 
action lately. I am a little jealous.
    [Laughter.]
    Mr. Griffith. But I do look forward to today's hearing and 
finding out--I know that we are not dealing with MSHA from the 
coal side but from the other side of the split in MSHA safety, 
but a lot of the issues are overlapping. I am just glad to be 
invited to be with you, and thank you for doing the good work 
that you all are doing.
    Mr. Mica. Well, thank you.
    And let me say at this point, since we have heard from the 
members with their opening statements, that all members may 
have seven days to submit opening statements for the record. 
Without objection, so ordered.
    And we will now turn to our patiently-waiting first panel 
of witnesses, and I will introduce them.
    Again, Mr. Jeff Stoll is the Safety and Health Manager at 
the Quartz Corporation; Mr. Mack McNeely is Vice President of 
LBM Industries; and Mr. Sam Bratton is the President of the 
North Carolina Aggregates Association.
    Gentlemen, let me just tell you a couple of the ground 
rules. First up, this is an investigative panel. In a minute, 
you will be sworn in. You will be given--and we will be pretty 
liberal with the clock today. But if you get too lengthy we 
will cut your oratory, and you can ask through the Chair to 
submit additional information about anything you would like to 
be part of the record. So you have that ability to do that, 
having gone one at a time to address the panel today.
    So with those basic ground rules, if you will stand, 
please, and raise your right hand.
    [Witnesses sworn.]
    Mr. Mica. Let the record reflect that the three witnesses 
all answered in the affirmative.
    I think we are going to start today with Mr. Bratton, since 
you represent the North Carolina Aggregates Association. Mr. 
Sam Bratton, we will start with you. So, welcome, sir. Thank 
you for being with us, and you are recognized to present your 
testimony.

                       WITNESS STATEMENTS

                    STATEMENT OF SAM BRATTON

    Mr. Bratton. Thank you. Good morning, Mr. Chairman and 
members of the committee. My name is Sam Bratton. I am 
President of the Wake Stone Corporation and the North Carolina 
Aggregates Association. Wake Stone Corporation is a 43-year-old 
family business, a crushed stone operation with 122 employees. 
As President of the North Carolina Aggregates Association, I 
represent an industry with over 135 crushed stone quarries and 
500 sand and gravel pits.
    I am here today to give voluntary testimony on behalf of 
the aggregates industry of North Carolina regarding the role 
the Mine Safety and Health Administration plays in regulating 
metal and nonmetal mining in North Carolina. I have provided in 
my written testimony several copies of correspondence to and 
from MSHA, plus several examples of MSHA inspector overreach 
provided by associate members.
    However, I do want to say for the record, some companies 
were not comfortable identifying themselves in their 
submissions due to fear of retribution.
    The North Carolina Aggregates Association wants to assure 
Congress and MSHA that our members are not against safety 
regulations. Safety is our number-one priority. But our 
industry's relationship with MSHA is strained. My last 
encounter with Mr. Lichtenfels best illustrates MSHA's 
perception of the mining industry.
    On November 30th, 2010, in a meeting between the North 
Carolina and South Carolina Aggregates Associations and MSHA, 
many members complained about MSHA requiring the chocking of 
loaded heavy equipment on a grade. These pieces of equipment 
are just too large, in all practicality, to chock on a grade 
fully loaded, but MSHA inspectors have been instructing 
equipment operators to chock-load their trucks on a grade in 
the quarry pit and then place the transmission in neutral and 
release the parking brake. The chocks consistently failed when 
tested in this manner.
    When it was explained to Mr. Lichtenfels that this practice 
was not only impractical but also dangerous, he looked directly 
at me and, I quote, ``You are still killing people, and so we 
are going to continue to do what we need to do.'' I admit that 
there was a time in the aggregate mining industry when safety 
was not our top priority. But in today's business environment, 
producers are much more sophisticated and focused on safety.
    Proof of this commitment is a 2011 metal and nonmetal 
injury rate of 2.6 per 100 workers, which was lower than coal, 
construction, manufacturing, education, health, forestry, 
logging, state and local government, and many others, as well 
as MSHA itself, which has an injury rate of 5.7 per 100 
workers, more than double the metal/nonmetal mining industry. I 
want to repeat, MSHA's injury rate is more than double the 
metal/nonmetal mining injury rate.
    I would like to share with you an example of overreach. In 
Wake Stone Corporation's Ashe County quarry, an inspector 
witnessed a customer truck driver climb on the side of his 
parked truck to check the truck bed. The driver was very 
careful and deliberate in performing this action, using three 
points of contact at all times. The inspector issued Wake Stone 
an imminent danger order and substantial and significant 
citation, with a high likelihood of permanent disability.
    When asked what should be done to prevent this circumstance 
from occurring again, the inspector told us that all customer 
activity outside of a truck must be done off quarry property. 
We explained that it is much more dangerous for a driver to 
perform this action on the shoulder of a public roadway versus 
in a quarry, where an area is provided for trucks to pull over. 
The inspector stated he did not care what happened to the 
driver outside the quarry entrance. But we presented a MSHA 
video in our defense which we possessed at the time of the 
citation. It was entitled ``Customer Delivery Truck Drivers 
Hazard Training.'' This is a slide from the video.
    The video clearly shows the exact same activity performed 
in a quarry in the same manner in order to demonstrate the 
proper way to climb a truck to get to a load. After viewing the 
video, MSHA refused to vacate the citation and imminent danger 
order. So we contested it. Unfortunately, we decided to settle 
for pennies after two years and three months and countless 
hours and dollars of resources. The decision to settle was 
based upon our concern that legal precedent could be set if the 
case went before the biased MSHA commission.
    It is our belief that training is much more effective than 
enforcement. But MSHA continues to place much more emphasis on 
enforcement. However, Joe Main, Assistant Secretary of Labor 
for MSHA said himself that training is a top priority for MSHA. 
But MSHA recently requested in their 2013 budget a $5 million 
reduction in funding for the state grants program, requesting 
the funds be shifted to enforcement; so, from training to 
enforcement. The reduction in $5 million to be shared among 49 
states does not appear significant. It is only $5 million 
shared, but it would devastate the North Carolina Department of 
Labor's Mine and Quarry Bureau Miner Safety Training Program.
    Our goal is a better relationship with MSHA. We desire 
consistency, transparency, cooperation, accountability, fair 
and due process of contested citations, differentiation of 
surface aggregate production from underground mining and all 
coal mining, and performance-based enforcement and more 
training dollars. We believe these goals can be achieved by the 
following recommendations.
    First, establish a three-member committee to review 
contested citations with representatives from MSHA, mining, and 
an MSHA-trained attorney.
    Two, develop a method of communicating all vacated 
citations to MSHA inspectors and mine operators. This is not 
done today.
    Conduct a process audit of MSHA procedures.
    Focus more resources on training.
    Establish a performance-based inspection process so those 
operations that need more enforcement get more enforcement, and 
those that don't do not.
    And more differentiation between coal mining and surface 
aggregate operations.
    I want to state, our industry needs MSHA. We need safety 
regulation. But we do not need it in the form it is 
administered today.
    I now ask all the people present that support this 
testimony through the North Carolina Aggregates Association to 
please stand.
    Mr. Chairman, committee members, we respectfully request 
the Committee on Oversight and Government Reform take action on 
these recommendations. Thank you.
    [Prepared statement of Mr. Bratton follows:]

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    Mr. Mica. Thank you for your testimony.
    Let the record reflect that your members also stood, a 
large number of them, and we appreciate also that they are with 
us today.
    Mr. Bratton. Yes, sir.
    Mr. Mica. We are going to hold questions until we have 
heard from all of the panelists.
    Mr. Mack McNeely is next. He is the Vice President of LBM 
Industries.
    Welcome, sir. You are recognized.

                   STATEMENT OF MACK MCNEELY

    Mr. McNeely. Mr. Chairman and members of the committee, 
thank you for holding this hearing and for this opportunity to 
testify. I appreciate your interest in our concerns with MSHA. 
I am Mack McNeely, Vice President of LBM Industries in 
Sapphire, North Carolina. We have three operations that are 
under MSHA jurisdiction. Our primary contribution to the local 
community is our mining operations. We treat safety at our 
mines as a priority. We are a very small operation. We work 
hand-in-hand with our employees, and the last thing we would 
ever want is for somebody to be hurt. We have a very good 
safety record.
    I would also like to say that MSHA has an important role in 
mine safety. We support that role. Safety is paramount to us, 
and we do not mind following the rules. The biggest issue we 
have with MSHA is how unpredictable and inconsistent they are 
with their interpretations and enforcement. Let me give you a 
few examples.
    In 1998, we installed a new conveyor with guarding at one 
of our quarries. Before putting the conveyor in service, we had 
a courtesy inspection by MSHA to make sure it was in 
compliance. After more than 20 inspections, an inspector in 
2010 cited us for inadequate guards on the conveyor, so we had 
to stop production for 24 hours while rebuilding the guards. We 
were given a field citation, but we couldn't resume production 
until we had new guards installed to satisfy the inspector.
    When ordering new conveyors from a manufacturer in 
Pennsylvania, they asked us to provide drawings showing where 
to locate the safety rails along the conveyor walkways. The 
conveyor company told us that every MSHA district interprets 
the safety standard differently, that there was no way they 
could install a rail to satisfy the inspectors by all the 
districts.
    We received a citation for a seat belt on the Bobcat 
series. Could you show the slide, please? The edge of the loose 
end of the belt was a bit frayed. Even though the fray had no 
effect on safety, we received a citation for S&S, high 
negligence, and likely to cause a fatality, with an $1,100 
penalty. We negotiated it down, but it should not have been 
cited at all. It had nothing to do with safety.
    And my last example is one that is still on the grill. In 
February 2010, the inspector gave us fair notice that an 
excavator didn't have hand rails for fall protection. The 
manufacturers build equipment according to international safety 
standards, but the standards accepted by the rest of the modern 
world were no longer good enough for MSHA. We contacted 
Caterpillar, but they do not supply such rails because their 
equipment, of course, was designed to meet international safety 
standards, and, ``MSHA has not provided clearly-defined 
standards regarding adequate fall protection or safe access.''
    We found an after-market supplier for guard rail kits and 
ordered one. We had a dozen machines that would need these 
kits, and it was going to cost us over $50,000. In June before 
the guard rail kit had even arrived, MSHA issued a bulletin 
that said if the equipment meets industry standards, that would 
be deemed sufficient.
    In November, I attended a meeting where the assistant 
secretary, Jim Main, was the keynote speaker. He also affirmed 
that if our equipment met industry standards, we were okay, so 
we thought that was pretty solvent when he said that our folks 
could use the access pass that the manufacturers had installed.
    During a 2011 inspection, the inspector asked to look at a 
part of the excavator. Our superintendent climbed up the steps, 
stepped onto the deck and grabbed the hand holds, which is the 
way the manufacturer had designed access to the engine 
compartment. The inspector issued a citation and imminent 
danger order for not using fall protection. We explained MSHA's 
policy to the inspector and that we heard it straight from Jim 
Main. We got a special assessment penalty of $6,300.
    At the closeout meeting, the inspector said something quite 
different. He told us, and I quote, ``This is not about safety. 
It's about compliance.'' Well, I ask you, compliance with what? 
What more could we have done than comply? We know that similar 
citations have been vacated, but not ours. We have other 
inspectors tell us that the citation should not have been 
issued, and I would like to say that our last inspection, which 
was this week, the inspector said going--alright with the same 
citation.
    I would imagine, as you evaluate my testimony today, it 
would be easy to believe that these issues are unusual, but 
they are not. Usually the people who testify before this 
committee are the ones with the biggest, strongest story to 
tell, but the strength of my testimony today has to be its 
commonness. Similar testimony could be repeated by practically 
every miner in the state.
    MSHA's focus needs to change from compliance back to 
safety. We need clarity and consistency with safety rules and a 
timely appeals process. We need your help and need MSHA to do a 
better job. It would be wonderful to be able to view MSHA as a 
partner in safety instead of an adversary.
    Thank you again for your interest in our concerns and this 
opportunity to testify.
    [Prepared statement of Mr. McNeely follows:]
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    Mr. Mica. Thank you for your testimony, Mr. McNeely.
    We will now turn to our final witness on this panel, Mr. 
Jeff Stoll, and he is the Safety and Health Manager at Quartz 
Corporation.
    Welcome, and you are recognized.

                    STATEMENT OF JEFF STOLL

    Mr. Stoll. Chairman Mica and members of the committee, 
subcommittee, first let me thank the Government Operations 
Subcommittee and all others in this room for allowing me the 
privilege to speak. I believe that the very existence of this 
meeting underscores what this great country stands for, 
freedom, and the right to express peaceful opinion or 
dissention to governmental authorities.
    Today, I come before you to testify regarding the Mine 
Safety and Health Administration reform debate. Most of the 
mining community would agree that since the inception of the 
Mine Act, MSHA has certainly had an overall positive impact on 
miner safety. But, they have since become out of balance under 
their current leadership by emphasizing a punitive approach 
instead of training and education. We in western North Carolina 
believe that these policies have created undue economic 
hardship on responsible operators and do very little to improve 
miner safety.
    This is our petition to the committee and MSHA.
    Update the 1977 Mine Act to reflect the safety 
modernizations and technological advancements made in the past 
36 years. Quite frankly, the Mine Act is very archaic as it is 
currently written.
    Number two, MSHA's discrimination and enforcement push 
needs to be reviewed from the standpoint of hindering 
legitimate company applications of disciplinary actions on 
employees. As these gentlemen indicated, accountability is a 
critical component of having a sound safety program.
    Number three, the arbitrary and capricious citational 
inspection system lacks due process application and contains a 
triple penalty economic burden. We have the terminate citations 
at the behest of the inspectors, the fines that are 
consequently negotiated and are paid by the operators, and then 
we have legal fees on top of that if we disagree with how these 
citations have been written. So I call that kind of a triple 
penalty burden on the operators.
    Number four, reconfigure the 800-number hazard complaint 
call-in system to ensure frivolous calls are not being made, 
creating confusion, mistrust, and resource drains for MSHA and 
industry.
    Number five, fines and penalties, or at least a percentage 
thereof, should be placed in a safety escrow account, 
essentially a beneficial safety project grant program managed 
by MSHA's Small Mines Office.
    Number six, MSHA's push to cut state grant program monies 
and funding for training and education is a step in the wrong 
direction for safety. More state resources should be utilized, 
minimizing the growth of MSHA's bureaucracy.
    Number seven, MSHA should exercise impartiality on fatal 
investigation root-cause evaluations, eliminating automatic 
blame on mine management.
    Number eight, MSHA's secretive approach on inspector notes, 
and the extent and hurdles for industry to obtain them--i.e., 
Freedom of Information Act--is not furthering safety 
improvement by preventing trust and transparency development 
between the regulator and the mining community. Those notes 
should be made available immediately. It's about safety.
    Number nine, if MSHA's ARs are going to make critical and 
many times very costly engineering calls on mine operators, 
then they need to obtain the proper credentials and credibility 
to do so.
    As a matter of appearance and credibility, MSHA should 
investigate why their own internal injury rates are so high 
since, as we understand it, the universal or bottom-line goal 
of any safety regulator or company safety program, what we all 
work for, is injury reduction or prevention.
    Number eleven, reduce the overall out-of-balance approach 
by MSHA as it relates to their budget, amount of resources 
spent, where these resources are spent, policy reviews and 
transparency to the U.S. citizenry and the regulated mining 
community.
    In summary, in a recent mining safety conference I 
attended, the central theme was that an effective safety 
program must not always use techno-speak and tough policy talk, 
but more of a personal connection and caring approach to each 
and every person. That is the best way to be a parent, as I 
have learned, a spouse, a friend, and, yes, a regulator. In 
this way also, MSHA should look more at this approach in how to 
be a more effective accountability organization for the mining 
community.
    After all, mining is critical to our economy here in 
western North Carolina, as we all know. In fact, if it isn't 
grown, it has to be mined. A smart MSHA is therefore required 
in this, the 21st century. Thank you.
    [Prepared statement of Mr. Stoll follows:]
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    Mr. Mica. Thank you. I thank all three of our witnesses for 
their testimony this morning, and we will start with a round of 
questions, and I will begin.
    First of all, to Mr. Bratton and Mr. McNeely, I saw some of 
the MSHA-produced training materials, the video. It appears 
from what you have said that some of the practices in their 
videos actually don't comply with some of their safety 
mandates. Is that correct?
    Mr. Bratton. Well, actually, the safety video was 
dismissed. They were dismissive of it, saying they weren't 
aware of the existence of the video, and as far as the 
specifics about climbing on the side of the truck, there are 
not specifics about that in the standard. It is about safe 
access and things like that. So it is broad enough where they 
can take and interpret what they want, and so that is what they 
did with the imminent danger order.
    The inspector was--he was on a scrim tower 600 feet away, 
and we had to go down there and clear the area. The truck 
driver, when he was approached said, ``You know, sir, this is a 
violation.'' He said, ``Well, I used three points of contact. 
You know, that is what I am told to do.''
    And anyway, the training video--I mean, MSHA is purposeful 
in allowing themselves a subjective interpretation at the time 
of the citation, and they also fall back on sets of 
circumstances being different. When you are able to get a 
citation vacated, they will not specifically say anything that 
would be precedent-setting because they want to continue to 
issue those citations. They just may understand that at this 
point you have put together a good enough defense, so they have 
got to vacate.
    So I don't know--there is not anything specific in their 
regulations that says that there is a safe way to access it. 
They just say you are supposed to use safe access, and that 
driver did, in accordance with a training video that they had, 
and they just wanted to dismiss it. It wasn't convenient for 
their argument. That is how they work.
    Mr. Mica. Let me say, too, and I was going to say this at 
the outset, first I thank you for coming to testify. When we 
had set this hearing up and we had you all selected as 
witnesses, I really appreciated you coming forward. Sometimes 
these agencies will intimidate some of our witnesses. In fact, 
I have found it difficult sometimes to get folks to come and 
testify because they fear, as someone said, retribution.
    I will tell all three of you, if there is any instance of 
what you feel is retribution or anyone giving you any 
difficulty as a result of your testifying today, I want you to 
notify the subcommittee or myself immediately.
    Mr. Bratton. Thank you.
    Mr. Mica. I will guarantee you I will handle those people 
and they will not forget the truth that I rub off, and if they 
want to talk about retribution, I know how to provide it.
    [Laughter.]
    Mr. Mica. But I thank you for coming.
    This is very serious. There are so many instances in which 
these agencies have become so powerful that they do intimidate 
folks, and so I thank you. And you can tell them, too, if you 
hadn't appeared, I probably would have subpoenaed you, but I 
have you all here anyway.
    [Laughter.]
    Mr. Mica. But that being said, it sounds like the 
penalties, they have gone overboard with the penalties. How is 
the industry affected by these--was it 500 percent increases, 
Mr. Bratton, Mr. McNeely, Mr. Stoll? Are they imposing a 
financial hardship?
    Mr. Stoll. I would say, if I may, we have had at one of our 
locations 2.2 million man-hours without an accident. The other 
location is approaching half a million. We have had three or 
four years in a row of record-setting injury rates. Our injury 
rate is about half or a third of that number. Mr. McNeely 
mentioned MSHA's injury rate woes internally.
    Mr. Mica. That is their inspectors and their folks?
    Mr. Stoll. That is everybody that they employ, apparently. 
Ours is like one-third of theirs. However, in 2012, we were 
fined $143,000--$143,000. Now, that doesn't add up. That just 
does not add up.
    Mr. Mica. Is that multiple infractions that they charged 
you with?
    Mr. Stoll. Multiple infractions, correct.
    Mr. Mica. And how about the others? Mr. McNeely, what is 
your experience?
    Mr. McNeely. Well, I would like to say that the fines have 
increased a good bit, but for our part, our biggest problem is 
the way that things get enforced in a manner--I mean, just like 
I mentioned this guarding issue. The fine might have been $200, 
and it might be very easy to beat that citation if you appeal 
it and go through the process for a couple of years, but the 
fact is we can't resume production until those guards meet that 
particular inspector's standards.
    Mr. Mica. The instance you cited, was that one instance in 
which they closed you down, or have there been others?
    Mr. McNeely. It is more like with the excavator issues. I 
have letters from Caterpillar going back to 2007 where they say 
MSHA will not give them good enough data to design a system for 
their excavators. They say it just goes back and forth between 
you have to have handrails, you don't have to have handrails, 
every few months. It has been that way for years. And one day, 
all of a sudden, we get a $6,300 fine. A few months before 
that, we are told we need to order handrails, and we are 
looking at buying $50,000 worth of handrails.
    Mr. Mica. You said there have been some 20 inspections 
before on that--what was that about?
    Mr. McNeely. That was the guarding issue.
    Mr. Mica. Okay. There is an inconsistency, a fair 
inconsistency in their standards and their--the 
unpredictability of enforcement.
    Mr. McNeely. Right, and we were told we need to buy 
handrails, and we ordered some, and before they get here, we 
get a bulletin that says we don't need them. And then a few 
months after that, we hear the assistant secretary speak 
himself, and he says they are not required, and then the very 
next inspector that comes through the door writes us a $6,300 
citation.
    Mr. Mica. Mr. Bratton, what is your experience?
    Mr. Bratton. The same as Mr. McNeely's. There is something 
that they have called pattern of violation where they want to 
try to issue as many citations in order to then be able to 
continue to escalate the fines as part of a pattern of 
violation. Also, within the Rules to Live By they have, which I 
can't cite by memory, but they have these rules that are 
escalating, increased severity, increased size.
    But one of the real costs that we have at MSHA is the cost 
of due process and the fact that in defending ourselves, the 
resources we have to--because we are basically guilty until 
proven innocent in the system and we have to hire attorneys, 
folks in-house have to spend a lot of time and effort on this, 
and they are citations that should never have been written. It 
was two years and three months on the fellow climbing on the 
side of the truck, preposterous, and it got to the end and, 
because you will conference a citation--they used to have more 
of an independent review. We just got a bulletin this week that 
now, if we contest a citation and we ask that it be 
conferenced, we have to go to the field office supervisor, who 
is the supervisor of the investigator who is training the 
investigator to issue the citations, and we have to go to him 
for some potential impartial conferencing, which does not 
exist. That system has now just been set up in the last week. 
June 17th that notice was issued.
    After that, then you appeal. You have an administrative law 
judge. If the administrative law judge rules in our favor, and 
MSHA doesn't believe that that is precedent-setting, it may 
lead to you going in and settling. If you want to take it to 
the commission above this, MSHA's commission, then it is a very 
biased group that rarely ever rules in opposition to MSHA.
    So this is just not--the whole system needs to be changed, 
and there needs to be an audit. I would love to see the 
Government Accountability Office go into MSHA and take a look 
at their processes.
    Mr. Mica. That is something we can request. I will confer 
with Mr. Meadows on that. In the meantime, too, the law--Mr. 
Stoll cited the law being some 36 years old. Has a state 
association or national, have you all developed an outline or 
suggestions for revisions in the law? Does anyone know? Mr. 
Stoll, you cited the aging of the 1977 Mine Act, that it 
doesn't meet today's technological advancements and 
modernization. Are there specific recommendations for updating 
that section?
    Mr. Stoll. I think corporately, through the associations, 
we have the National Mining Association, the North Carolina 
Aggregates Association, they have submitted some of these ideas 
----
    Mr. Mica. Maybe you or, I don't know, Mr. Bratton, you are 
with the Aggregates Association, do you have specific 
recommendations?
    Mr. Bratton. Yes, sir.
    Mr. Mica. Changes in the law that you could submit them to 
the subcommittee, we would appreciate that.
    Mr. Stoll. If I may, Mr. Chairman, give you one example 
that I brought with me is safety belts and lines. That is in 
the Mine Act. In fact, let me just read it to you. It says, 
``Safety belts and lines shall be worn by persons in order to 
avoid the danger of falling.'' Then it goes on and talks about 
working around stacks--taking them serious. Well, no company 
utilizes safety belts anymore. They have been deemed, by 
testing and everything else, to be very hazardous to the miner. 
That is just one good example. We use four-point harnesses now 
when we apply fall protection.
    Mr. Mica. Again, maybe as a result of this hearing, we 
could get the various state and national associations, if they 
come together, they probably have some of this drafted already, 
their suggestions, and then we will see if we can't check with 
them. Last year, I don't know how we did it, but we did the gas 
pipeline safety. It was similarly outdated. We got the darn 
thing passed. I am still stunned. Mr. Waxman signed on as a co-
sponsor. Miracles do happen, even in Congress.
    But again, with outdated laws and an agency that has sort 
of spun out of control here, it seems like basic guidelines and 
statute cries out for some reform. So we will work with you, 
and I am going to work with your representative to see what we 
can do in that regard.
    Mr. Bratton. I would like to submit my oral testimony for 
the record.
    Mr. Mica. Without objection.
    Mr. Bratton. In there I have six recommendations with some 
specifics.
    Mr. Mica. Excellent.
    Mr. Bratton. But I would be pleased to participate in the 
process.
    Mr. Mica. Excellent. I am always quoted as saying, one of 
my favorite sayings to folks is don't assume members of 
Congress know anything, start from that proposition.
    [Laughter.]
    Mr. Mica. And I can tell you, I am learning a lot today. 
That is how things get changed, through these kinds of hearings 
and exchanges. Of course, you can't just talk about it. You do 
have to act on it.
    So with those comments, let me yield to Vice Chairman 
Meadows. You are recognized.
    Mr. Meadows. Thank you, Mr. Chairman.
    And I thank each of you for your testimony. Obviously, some 
of these stories, Congressman Roe, as we start looking at these 
pictures, it is very illuminating when we see really the things 
that you have been cited for. My concern is when you start 
getting cited for, Mr. McNeely, in your case, a frayed hem on a 
seat belt that was not part of the restraining harness, it 
becomes very difficult to figure out what you need to spend 
your money on and how best to protect your workers when you are 
looking at an enforcement mechanism. Each time your inspector 
comes, you are trying to guess at what they want you to pay 
attention to?
    Mr. McNeely. Well, it does, and that is probably one of the 
main things that we would like to say, is we need some 
consistency. And on issues like the seat belt or like the 
excavator access, it just truly don't make sense. And, I mean, 
mining companies have been using excavators since before MSHA 
was inspecting mining companies, and we still don't know how to 
check the oil safely. That's one of those things.
    Mr. Meadows. Right. So, you are here today. You are three 
people of an industry. I mentioned in my opening testimony, I 
think there are 800 permitted sites across North Carolina, so 
you are just three of 800, and you probably represent more than 
just three of those sites. But as you look at that, one of the 
arguments is going to be that you guys are unique, that it is 
only the three of you, that you are the few that are having to 
deal with this.
    Would you say that other miners are experiencing similar or 
worse problems than what you have highlighted today?
    Mr. McNeely. I would say that the things that I highlighted 
today are very common, and we probably have had fewer problems 
than a lot of other companies, even other companies that do a 
good job with safety.
    Mr. Meadows. Okay. Mr. Bratton?
    Mr. Bratton. Yes. Well, that is why I asked people in the 
audience to stand at the end of my testimony in support of it.
    Mr. Meadows. So what you are saying is that those people 
who stood, they have experienced similar situations like that?
    Mr. Bratton. Yes. If you would like to stand again?
    Mr. Meadows. If you have experienced similar situations on 
the ambiguity, would you stand?
    Mr. Bratton. Thank you. I hope that helps.
    Mr. Meadows. It does. Thank you.
    So, Mr. Stoll, you mentioned about a fine of $140,000-some-
odd. You are a larger corporation, so you can afford that, 
right? Oh, you can't.
    [Laughter.]
    Mr. Meadows. So when we have fines like that--and let me 
shift our focus a little bit. When we are going with 
enforcement and we are seeing that it is unfair--and this kind 
of piggybacks on what I asked Mr. McNeely--when we feel like 
enforcement is unfair, owners of mines are in a unique 
situation in that they can't pick up their mine and move to 
another state. And so you are kind of trapped there and have to 
deal with it.
    But those that have options of mining abroad, do you see us 
losing more and more jobs to quarries, if there are the natural 
resources in those foreign countries? Do you see this as being 
so punitive that other mines that compete with us, we might 
lose jobs? It is tough when you are dealing with something that 
you measure in tons, that it is hard to import that. But do you 
see us losing some of the, let's say, high-quality quartz? Mr. 
Stoll?
    Mr. Stoll. The simple answer is yes. The reason is when you 
look at our fines that we had from MSHA in 2012, you are 
looking at $143,000. That is hiring two months. We have 12, 13 
percent unemployment here in Mitchell County, so that is the 
difference.
    Now, the arbitrary and capricious part, I know that is kind 
of a harsh term, but when you look at the imbalance of 
applications like inspectors that these two gentlemen 
mentioned, and then in our particular case a lot of that 
$143,000 generation came from an inspection of some of our fall 
protection systems that were deemed by other inspectors to be 
okay. So what you breed is you breed complacency. The operators 
in that were confused in what we have that is okay with the 
regulations and with MSHA, and what we don't have that is okay.
    So, you know, I train our guys about complacency, 
especially some of our older miners, not to get complacent, to 
be as safe as they can. If they don't know how to do something, 
always keep your guard up for safety. How would MSHA expect the 
operators, then, to regulate if three inspectors come down and 
say that system is okay, and the next one comes in and fines us 
$100,000? So that imbalance can affect jobs and ----
    Mr. Meadows. So it is not knowing at what point you are 
going to get fined for what. And I think, as Mr. McNeely said, 
you had 20 different inspections, and the Chairman kind of 
pointed that out, 20 different inspections, and then all of a 
sudden you were asked to stop work and install the guardrails. 
So let me go to that point.
    When you have these major operations, and when you get a 
citation and you have to stop work, that means sending people 
home? That means shutting it down? Or does it mean you just 
basically pay them while you can't operate? Is that what you 
have to do occasionally? Mr. Bratton, you can see probably 
across the board. I mean, is a work stoppage what happens 
sometimes when these things are issued?
    Mr. Bratton. Yes, and that means it can be stopping the use 
of that piece of equipment, which with a conveyor means you 
can't operate the plant.
    Mr. Meadows. Right.
    Mr. Bratton. There are other activities that still could be 
done, but it is an expensive interruption.
    Mr. Meadows. Is there a matrix? My time is running out, so 
I will finish with just a couple of very short questions here. 
Is there a matrix that says, okay, if you violate this, this is 
a major offense and you are subject to a $50,000 fine if you do 
this, or you are subject to work stoppage? Do you have--I mean, 
to give a practical example, when I am on the highway--and I 
never speed, sheriff.
    [Laughter.]
    Mr. Meadows. But when I am on the highway and I am going 
past the speed limit sign, I know that the minute I go beyond 
55 miles an hour, that I have the risk of getting a fine. Do 
you have the proper speed limits from the regulations that are 
in place? Do you understand all the speed limit signs that are 
out there, or are there some of them that are hidden behind 
bushes and things like that?
    Mr. McNeely. The short answer is no, we don't. It is more 
like instead of having a speed limit, the signs say ``Travel at 
safe speed.'' So if you come through Bakersville, a safe speed 
can be one thing, and as you go through Spruce Pine, a safe 
speed could be another. And it could also be ----
    Mr. Meadows. So it is up to the police officer to decide 
that?
    Mr. McNeely. Exactly, and in some of these cases, it is 
things as big as say you were sitting in a turn lane to turn 
left and you get stopped and the patrolman says, ``Your turn 
signal blinks too slow.'' And you say, ``Well, my car is a 
brand-new Toyota that is designed to all the safety 
standards.'' And he says, ``Well, I think it blinks too slow, 
it is a hazard, so you get it fixed.'' And then before you get 
it fixed, you get a bulletin that says your turn signal is 
fine.
    [Laughter.]
    [Applause.]
    Mr. Meadows. I will close with this because, Mr. Stoll, you 
mentioned complacency. I have visited some of these places. I 
personally have visited, and I am not going to mention any 
names in terms of what mines I have been in, but I haven't 
found complacency. In fact, I found just the opposite. As a guy 
who doesn't know what he is doing, I had to sign unbelievable 
waivers.
    [Laughter.]
    Mr. Meadows. Unbelievable. I had to go through a safety 
class to be there. And then I got--in one particular area they 
got all concerned because I left my Coke can sitting on the 
thing, and the wastebasket lid was half open. And they said, 
``No, you have to close the wastebasket lid. We need to make 
sure we get rid of this Coke because we can get fined in case 
it attracts bees and it could potentially sting somebody.'' Is 
that an exaggeration, or have you heard something like that 
before? I mean, I was shocked to hear that.
    Mr. Bratton. That is not an exaggeration. That is what is 
happening.
    Mr. Meadows. All right. With that, Mr. Chairman, I yield 
back.
    Mr. Mica. I recognize now Dr. Roe.
    Mr. Roe. I thank the Chairman.
    Mr. McNeely, just to let you know, that safety belt looked 
a lot better than the one I put on in the airplane I flew in.
    [Laughter.]
    Mr. Roe. I think there is a larger theme here today. It is 
one of overreach of government, and let me sort of share with 
you some things that may not have to do with mines. Well, one 
is a sulfur mine in my district, and they were issued an MSHA 
violation for a two-pronged toaster instead of a three-pronged 
toaster in the office. And, you know, I have only been in 
Congress four-and-a-half years, but I thought the canary died 
when you had an MSHA violation, something very significant, not 
potentially bees might get in a Coke can or a two-pronged 
toaster when you are trying to toast a sandwich.
    I think that inconsistency that varies from inspector to 
inspector makes it impossible to pinpoint. It is a moving 
target, and it may vary from one district to another, and I 
almost laughingly said welcome to Medicare. I have been dealing 
with this for 35 or 40 years with Medicare rules and 
regulations. You can't offer your business and run your 
business. We treat safety at our mines very, very important, 
and the whitewater quarries have one lost-time accident the 
past 13 years. That is amazing. And the other quarry hasn't 
lost time from an accident in 27 years. And one of the lost 
times recently was someone who had a heart attack at the site.
    I can recall when OSHA, at one of our hospitals, where the 
handicapped rail in the handicapped bathroom--the OSHA folks 
came by and said it should be here. People say it should be 
here, and that would be funny except somebody had to come in 
and change all of that and spend half a day doing that. And I 
told the hospital administrator, I said, ``Look, this is 
simple. Just put you some brackets up and when OSHA comes, put 
the rail here. Stick the rail up here, and that will solve your 
problem.''
    [Laughter.]
    Mr. Roe. But it doesn't have anything to do with the 
primary goal, which is to make our miners safer.
    And I think that, Mr. Stoll, you brought out at the very 
beginning the purpose of these acts is to make it a safe 
working place for miners to do their job. And it looks to me 
like certainly, Mr. McNeely, the operation you have focuses on 
that. I can't imagine a workplace being more safe than that, 
and to be dinged for something as ridiculous as a frayed end of 
a belt that doesn't even have anything to do with staying in 
there, that would be like the end of my belt here is dinged and 
it won't keep my pants up. I mean, that is how silly it is.
    So, Mr. Stoll, here is something I want to comment on. Mr. 
Bratton, you brought this up at the very beginning. One 
operator is going to be cited for a violation for operating in 
the same fashion suggested by the MSHA training video. The MSHA 
inspector told the operator that the training video was 
incorrect, that it was up to the inspector to determine the 
proper procedure. How do you all know what that is? You don't, 
so you can't comply.
    Mr. Bratton. The operator--it is like being in the 
darkness. You can't tell what is going to be a fine, what is 
going to be a citation, what is not.
    Mr. Roe. I am going to ask this panel a very tough question 
now, and it may not be a fair question, but any of you can jump 
on it. Do you feel that these inspectors are required, 
pressured to write citations on every inspection? If they go 
back and don't find anything wrong with your operation, do you 
feel like they are pressured to find something?
    Mr. Bratton. Yes, and we have had instances with members. 
There is a member who has an operation in the western part of 
the state, and they had zero citations. Well, then a couple of 
days later, three MSHA inspectors showed up with the field 
office supervisor and said you have zero citations. There is no 
doubt, there is no way you can have zero citations. I am 
standing here until you get a citation. So he gave them about 
three citations. Then the next week they came back for another 
inspection.
    Mr. Mica. Excuse me. Could you ask the witness when this 
occurred?
    Mr. Roe. You can respond to the Chairman's question.
    Mr. Bratton. When?
    Mr. Mica. When this occurred.
    Mr. Bratton. Well, I have somebody in the audience who can 
tell you exactly when it was.
    Mr. Mica. Was it in the last year? Five years?
    Mr. Bratton. David?
    Voice. In 2010.
    Mr. Mica. In 2010, in the last three years. Thank you.
    Mr. Roe. Thank you, Mr. Chairman.
    And I will finish with two things to show you how hard it 
is for a business to prosper. In my medical practice at the end 
of every month, we would clean out the drawers and the closets 
for any medicine that may be going out of date and we send it 
to the homes so that people that don't have access to care can 
get some medicine. We put it in a bag. Well, there are two bags 
in the medical office. One is a red bag; that is the biohazard 
bag. One is just a clear trash bag. The nurse stuck it in the 
red bag. The OSHA inspector came in and said what's in that 
bag? That was an $1,800 fine for putting it in the wrong bag.
    The second is a needle that we use to draw fluid around a 
pregnant woman to check for their maturity, fetal maturity. 
This is a point where there is no safety. There isn't one in 
the universe you can find. We didn't have a letter in our 
office to say there wasn't one in the universe. That was a 
$1,700 fine.
    We did exactly what you guys did. We wrote the check for 
$3,500 to get these people out of our office so they wouldn't 
be back every day. When you make a moving target--I mean, 
literally you cannot meet the standard, so it is almost 
extortion. It is so frustrating because if you would just tell 
me what to do or say, ``you should have done this,'' we 
wouldn't do that. We would absolutely follow those rules.
    And the last thing I've got--my time is up. I wanted to ask 
you a question, maybe later. All of this money that is 
collected in fines, $120-something-million in 2005, in 1995 it 
was $20 million--I am rounding off these numbers--how much of 
that money is reinvested back into education about how to make 
the workplace safer? Mr. Stoll?
    Mr. Stoll. Well, I think there are opportunities with that 
money.
    Mr. Roe. Do you know how much of it is? I think I heard $5 
million? Is that how much was invested?
    Mr. Stoll. How much is invested back?
    Mr. Roe. Yes, sir, into education. In other words, instead 
of not punishment but educating you all how to run a safer 
mine.
    Mr. Stoll. I think MSHA's intentions are reflected in their 
budget by increasing the enforcement and decreasing the 
training and education. That is what their true intentions 
actually are released in MSHA's budgets.
    I would like to mention something about the training and 
education part, and I would like to submit this for the record. 
On MSHA's very own website, it actually says--it is an 
historical account. It says in the response--this is talking 
about the number of mining fatalities since 1910. We had then 
the Bureau of Mines, established in 1910. ``Promoting safety in 
mining through research and training.'' So does it make any 
sense, with the reduction in mining fatalities to the very 
record low levels today, that there is a motivation to increase 
the enforcement budget and decrease the training budget?
    The state grant program is slated to be de-funded here in 
North Carolina. That, to me, a lot of small operators--and we 
have other mechanisms to do our training. But for a lot of 
small operators probably in this room, that is a critical 
resource. So there is a disconnect with where you are putting 
your budgetary focus on and everything else from that 
perspective.
    The training thing, the gentleman over here, Mr. Bratton, 
mentioned that there were some disconnects with some videos. We 
actually discovered one of those on a fall protection video. It 
was titled, ``Fall Protection: Your Lifeline to Safety,'' and 
there were actually two or three citational items that MSHA has 
in that video. One was where I was talking fall protection 
applications, which is somewhat of a technical application of 
safety, not to choke the lanyard around a rail. This particular 
video shows a miner in a training video. It shows him with a 
lanyard around a top rail instead of using the provided main 
basket that provided anchor points.
    The other item, the gentleman is working at height, and you 
have a hoist, and a hook has a broken safety latch, and we 
personally have been cited for broken safety latches before.
    So I think there is a need for them to update their 
education and training resources instead of putting more money 
into enforcement. It just makes sense to us.
    Mr. Roe. I thank the gentleman. I will yield back.
    Mr. Mica. Thank you, and we will now yield to Congressman 
Griffith.
    Mr. Griffith. Thank you, Mr. Chairman.
    Mr. Stoll, if you could tell me--you indicated you might 
lose jobs to other countries. Who is your--who may be your 
major competitor for your particular product?
    Mr. Stoll. China.
    Mr. Griffith. And so what you are saying is that if costs 
continue to go up, and part of those costs are, of course, 
fines that you pay and the things that you can't figure out, it 
puts China in a better position to compete with us in the 
worldwide market for your products. Is that not correct?
    Mr. Stoll. That is correct. And as a business, if we have 
increased costs, regulatory costs imposed on us, then 
customers--it is market-driven. Customers can go other places.
    Mr. Griffith. Yes. And, Mr. McNeely and Mr. Bratton, if I 
could, you all started to talk about safety belts and 
harnesses, and your time ran out, and I see that there is a 
harness laying there on the floor and I would kind of like--I 
don't know anything about the differences. Is the safety belt 
like the old lap belt in the car, or what is the safety belt 
like?
    Mr. Bratton. The safety belt just went around your 
midsection and it was tied off. The problem was that there were 
numerous spinal injuries from falling.
    Mr. Griffith. So if I make the analogy to the car, like we 
have been making to some of these others, it would be like the 
old lap belt in the cars when I was a kid, as opposed to the 
shoulder belts and the airbags and the lap belt combined. Is 
that what you are saying?
    Mr. Bratton. I would say so. Yes, sir. What Mr. Stoll was 
talking to is that the regulations still specifically describe 
a belt that is not even used anymore because it is not safe.
    Mr. Griffith. So technically, if they really wanted to cite 
you, they could cite you for having the safer equipment. So I 
could be--using that car analogy, if I was pulled over at a 
roadblock to check on safety inspection and I had all the 
latest airbags and a shoulder harness, technically the officer 
could write me a ticket because I don't have the old-fashioned 
lap belt.
    Mr. Bratton. Well ----
    Mr. Griffith. Is that a fair assessment? Go ahead and tell 
me what the difference is. We do have a TV camera here. I would 
like you to show the TV folks the four-point harness so they 
can understand how safe this is who might see this at a later 
date or who might be looking at the Congressional record at a 
remote location.
    Mr. Bratton. This is the safety harness that we were 
written a citation for.
    Mr. Mica. We are not going to be able to hear you.
    Mr. Bratton. I am sorry.
    Mr. Mica. No problem. We want you to describe it so we have 
it in the record.
    Mr. Bratton. This is a safety harness that Wake Stone was 
cited for as being defective.
    Mr. Massey, would you approach and show them the defect 
that we are still fighting?
    It is not very obvious.
    We also contacted the manufacturer of this harness and 
asked them if this harness was safe to use, and they issued a 
written letter stating that this ----
    Mr. Mica. So the frayed end is this ----
    Mr. Bratton. Yes, sir.
    Mr. Mica.--is what you were cited on?
    Mr. Bratton. Yes, sir.
    Mr. Mica. It is similar to the seat belt?
    Mr. Bratton. Yes, sir, but not as frayed.
    Mr. Mica. Thank you. I appreciate that.
    Mr. Bratton. And with the analogy with the car, it is hard 
to say. It is just like Mack said where you have a turn signal 
that blinks too slow, or they may say that that airbag that you 
have is in the wrong place, or that maybe you turned your seat 
belt or whatever. That is a citation.
    Mr. Griffith. And here is where it gets interesting. As I 
told you all in the beginning, I used to be a criminal defense 
attorney. If an officer and a sheriff--the laws may be a little 
bit different in North Carolina, but if an officer pulls 
somebody over because they have a faulty exhaust system that is 
not built to the manufacturer's specs and you can establish 
that it was, in fact, built to the manufacturer specifications, 
a criminal defendant, everything from that point forward, at 
least in the Commonwealth of Virginia, any other evidence, if 
that was the reason for the stop, would be restricted.
    So what we are saying is that we have folks who are trying 
to provide jobs in the community. We hold them to a standard 
that is higher than we are holding standards when you have due 
process in the criminal courts. So you are being treated worse 
than the criminals are. Is that correct?
    Mr. Bratton. That is correct. Yes, sir.
    Mr. Griffith. And that would be my opinion, as well. I will 
tell you that, you know, when you hear these stories--and I 
have heard these stories in Virginia, too. One that I have 
heard, and it was a coal mine, they must have 10,000 rollers on 
a conveyor belt, and one of the mines got cited because they 
had one roller that wasn't rolling properly out of the 10,000-
some rollers. It didn't create any safety effect whatsoever.
    I will also tell you that while there was no citation, I 
believe, written, I was out talking to some miners on a parking 
lot, and I have had the mine safety training, but one of the 
folks with me had not had the mine safety training, and 
somebody spotted coming up the road the MSHA folks. All of a 
sudden we were being hustled off in a car because--we are not 
going in the mine, mind you. We were just standing in the 
parking lot. But there was a fear that standing in the parking 
lot without having had the mine safety training class could get 
that mine cited as a violation of safety rules, and all we were 
doing was talking.
    And I can tell you that words can be very powerful, but I 
don't believe they can call it a mine safety problem when you 
are just standing in the parking lot talking issues. Would you 
agree that that is fairly typical of some things that you all 
are hearing?
    Mr. Bratton. Yes, sir. And also, whoever saw the MSHA 
vehicle and told you that MSHA was coming is in violation 
because that is advance notice.
    [Laughter.]
    Mr. Griffith. I am glad I didn't say where I was exactly.
    And, Mr. Bratton, in this era of scarce resources, is it 
your opinion that MSHA is spending most of its money in 
enforcement rather than attempting to instruct and train 
operators?
    Mr. Bratton. Yes, sir. I believe that to be a fact.
    Mr. Griffith. And I will tell you sometimes it is 
frustrating because I am told that 5, 10 years ago, when 
operators would come--and most of my folks are coal, and we do 
have aggregates in the district--that somebody would say, 
``Hey, you need to get this straightened out,'' or in the case 
of the harness, ``It has gotten a little frayed, it isn't a 
problem now, but make sure you keep an eye on that,'' and there 
wouldn't be a citation written, or there might be a warning 
written but it was down the road before you started getting 
fines, and my understanding is now, at least from the folks who 
talk to me in my district, that they are quick to fine and very 
rarely do they say, hey, keep an eye on this, or drive a little 
slower, or get that one roller fixed.
    Mr. Bratton. My understanding is that if they see something 
that could be interpreted as a violation, that they are 
required to write that citation. So the inspectors have no 
leeway to advise on, okay, I see this, this could be a problem 
down the road, let's take care of it.
    Mr. Griffith. Mr. Chairman, if I might take another minute. 
I know I am over time, but if I could take a minute just to 
pontificate.
    [Laughter.]
    Mr. Griffith. One of the problems I think we have in our 
federal system, and it is creeping into the state systems as 
well, historically the law was established to promote law and 
equity, and equity was doing what was fair, even if you didn't 
meet the black letter of the law; or if you violated the black 
letter of the law, if that interpretation was unfair in the 
circumstances, we gave our officials the authority to figure 
out, okay, wait a minute, that is not a fair interpretation.
    Starting at about the end of World War II, this country 
went away from that, and we are all looking at black letter. 
That is why the code volumes get bigger every year, because we 
are trying to do black letter. But my experience is you can't 
black letter everything, and perhaps we need to reestablish the 
principles of equity that were founded in the Anglo-American 
jurisprudence system, and by banning them, we are making the 
citizens no longer have confidence.
    And thank you, Mr. Chairman. I yield back.
    [Applause.]
    Mr. Mica. Technically under the rules of the committee, the 
only one that is really permitted to applaud for Mr. Griffith 
is your representative, Mr. Meadows.
    [Laughter.]
    Mr. Mica. So we are all out of order.
    [Laughter.]
    Mr. Mica. There may be additional questions that we will 
have. Does anyone have any last-minute questions of the panel?
    [No response.]
    Mr. Mica. Witnesses, I will advise you that we may submit 
additional questions to which we would ask you to respond, and 
your responses will be made part of the record.
    I thank you for coming out this morning.
    Mr. Meadows. I am sorry. Would you yield?
    Mr. Mica. I am sorry. I would be glad to yield to the 
gentleman.
    Mr. Meadows. I just wanted to again say thank you. The 
other that I would ask you for the record that we have a few 
days here, if you will give us additional examples from perhaps 
other people that were not here today. Mr. Bratton, you are 
probably in the best position to do that, to submit for the 
record other examples of where we feel like we have had unfair 
citations. That would be very helpful.
    Mr. Mica. And we would welcome that. And the record is open 
for seven days. If necessary, we can extend that through your 
representative, Mr. Meadows. He will make certain that that 
submission is part of what is referenced in the record today.
    So, with that, I will thank you again, Mr. Stoll, Mr. 
McNeely and Mr. Bratton, for your participation and your 
testimony today. So, you are excused.
    I will call up the second panel. The second panel consists 
of one witness. That individual is Mr. Marvin Lichtenfels, and 
he is the Deputy Administrator for Metal/Nonmetal, Mine Safety 
and Health Administration.
    While the staff changes the witness table, I will welcome 
Mr. Lichtenfels. If you would just remain standing, sir, it is 
part of our process as an investigative panel to swear in our 
witnesses. Will you raise your right hand?
    [Witness sworn.]
    Mr. Mica. Let the record reflect that the witness answered 
in the affirmative.
    I would like to welcome you, sir. Your position is the 
Deputy Administrator for Metal/Nonmetal Mine Safety. Welcome to 
you. Since you are the only witness for this panel, you have 
some leeway as far as time and providing your testimony. As I 
advised the other witnesses this morning, additional 
information or testimony you would like to be part of the 
record, you can request that through the Chair.
    So, with that, welcome, and you are recognized.

   STATEMENT OF MARVIN LICHTENFELS, DEPUTY ADMINISTRATOR FOR 
     METAL/NON-METAL, MINE SAFETY AND HEALTH ADMINISTRATION

    Mr. Lichtenfels. Thank you. Chairman Mica and members of 
the subcommittee, I appreciate the opportunity to be here today 
to testify about metal/nonmetal mine safety and health and the 
actions MSHA and industry have taken to protect the safety and 
health of the nation's metal and nonmetal miners.
    Let me say at the outset that we at MSHA take the concerns 
of the metal/nonmetal industry very seriously.
    Mr. Mica. Sir, they are going to try to get that a little 
bit closer. Thank you.
    Mr. Lichtenfels. We want to maintain and build on our 
history of working together to improve mine safety. What we are 
doing at MSHA, as well as the mining industry, is moving mine 
safety in the right direction. Compliance is improving in the 
nation's mines and, most importantly, mine safety is improving 
with back-to-back years of the lowest injury and fatality rates 
in mining history.
    MSHA has engaged in substantial outreach to metal and 
nonmetal stakeholders in all areas of the country, including 
meeting with aggregate associations in North Carolina, Virginia 
and Florida to discuss issues of mutual concern and identify 
solutions that will benefit the mining community.
    We understand that our working relationships like forming 
alliances with aggregate associations and others to work 
together.
    As far as the agency's outreach, MSHA has changed the way 
it rolls out safety and health initiatives. We involve our 
stakeholders and conduct outreach and training in advance of 
implementation. We post training on our website so that 
industry has access to the same training that MSHA inspectors 
can see.
    This year is the 35th anniversary of the Federal Mine 
Safety and Health Act of 1977 which provides the same 
protection to metal and nonmetal miners that coal miners enjoy 
as a result of the Federal Coal Mine Health and Safety Act of 
1969. This act has been successful. In 1977, 134 metal and 
nonmetal miners lost their lives in their workplaces. By 2012, 
the number had fallen to 16, equaling the record low that was 
set in 2011.
    While we have made significant progress since 1977, too 
many metal and nonmetal miners are still being injured and 
losing their lives in preventable accidents. So far this year, 
there have been nine fatalities at metal and nonmetal mines.
    With input from our alliance partners, MSHA has taken 
several actions to reduce fatality and injury rates even 
further. These include Rules to Live By, initiated in 2010, 
which focuses on the most common mining deaths and how to 
prevent them, Guarding 1 and 2 to reduce violations of MSHA's 
guarding standard, and a policy letter MSHA published, 
clarifying MSHA's fall protection standard.
    MSHA has renamed the Small Mines Office the Small Mines 
Consultation Bureau, which has refocused its efforts to better 
assist small mines and work with the aggregate association to 
identify those in need of the program's services. This office 
provides courtesy inspections and on-site visits to explain 
MSHA's initiatives and help operators understand and better 
comply with MSHA rules and regulations.
    To improve consistency in the application and enforcement 
standard, MSHA has strengthened its inspector training 
programs, including implementation in 2010 of a new training 
program for field office supervisors. MSHA has added a course 
for inspectors and supervisors on professionalism and 
consistency to address concerns raised by mine operators.
    In January, 2012, the agency implemented pre-assessing 
conferencing, giving the operators the opportunity to resolve 
issues prior to conducting citations. In 2012, MSHA conferenced 
over 2,000 metal and nonmetal citations. To date, 67 percent of 
those citations have been resolved without litigation. These 
efforts have been successful. Metal and nonmetal total 
citations are down 18 percent from 2010 to 2012.
    In 2011, the all injury and fatality rate in metal and 
nonmetal mines was the lowest reported in mining history. 
Preliminary data for 2012 show these rates have declined even 
further. Nonetheless, one mining death is one too many, and 
MSHA's metal and nonmetal program area will continue to do 
whatever it can, working with the industry, to reduce the 
number to zero and to keep miners healthy and safe.
    Thank you for the opportunity to be here today, and I would 
be happy to answer your questions.
    [Prepared statement of Mr. Lichtenfels follows:]
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    Mr. Mica. Well, thank you. I will start with some 
questions.
    You have heard, again, some industry representatives say 
sort of the inconsistency with which they imposes fines and 
penalties and the lack of a sort of standard interpretation of 
the requirements. Would you like to respond in general or to 
any of the specific instances that were cited?
    Mr. Lichtenfels. In general, sir, I would like to say that 
there have been inconsistencies and we are trying to address 
those in a number of ways. I mentioned the guarding and fall 
protection particularly.
    Mr. Mica. When was that?
    Mr. Lichtenfels. Regarding PowerPoint, I mentioned ----
    Mr. Mica. You had said that you had some programs, I guess, 
to try to get the standards, standard equity in training your 
MSHA inspectors?
    Mr. Lichtenfels. Right. We developed training programs on 
professionalism.
    Mr. Mica. Tell me about those. Are some of them the most 
recent, or what is the history?
    Mr. Lichtenfels. It started in 2010 and 2011, and we 
expanded it to include professionalism. Our supervisors attend 
training every two years. Our inspectors receive training every 
two years.
    Mr. Mica. It is a little hard to hear you. Does that thing 
extend any further, or maybe you can come up closer to it?
    So, you have heard the complaints. And again, no one 
benefits by anyone being injured, and certainly not by a 
fatality, and I am sure the cost of a fine is miniscule 
compared to loss of life and the costs incurred when something 
goes wrong. However, these nine fatalities that you have cited, 
had these companies previously--do you know if they had been 
cited, and were there any instances of safety violations that 
were cited in the nine fatalities that led to their deaths?
    Mr. Lichtenfels. Yes. Without having the specifics, there 
were citations issued in these situations.
    Mr. Mica. But, I mean, had you--a citation was issued after 
the death.
    Mr. Lichtenfels. Right.
    Mr. Mica. I was wondering if, through your inspection, you 
had identified a situation that would have--or any of these 
folks were guilty of a violation before the fatality. Was the 
system working, and then someone didn't adhere to your 
recommendation or your citation?
    Mr. Lichtenfels. I don't have that information, but I can 
----
    Mr. Mica. For the record, if you could provide that to the 
subcommittee.
    The other issue, the lawyers touting the 35 years, have you 
heard also--in fact, the gentleman sitting in the same seat 
there, Mr. Stoll, and others said that the law is out of date. 
Would you concur with that? One.
    And then, two, has the administration or the agency 
recommended to Congress, or have there been any attempts 
recently to update the statute?
    Mr. Lichtenfels. The standards are continually reviewed. 
The rulemaking process is a long and tedious effort. The one 
effort that we made recently was fall protection.
    Mr. Mica. That is a rule. I am talking about statute. Quite 
specifically, one of the provisions of statute was cited as out 
of date according to modern technology or equipment.
    Mr. Lichtenfels. I believe Mr. Stoll was talking about fall 
protection standards?
    Mr. Mica. Yes.
    Mr. Lichtenfels. Yes. That is what I was going to say that 
we addressed by policy letter, and what we did ----
    Mr. Mica. But again, we have four members of Congress here. 
We change the law. The law was written in 1977. Has the Mine 
Safety Administration or the Obama Administration, or prior to 
that the Bush or somebody, have they recommended changes to 
Congress in the law that you are aware of?
    Mr. Lichtenfels. No. No, sir, not that I am aware of.
    Mr. Mica. Well, again, I think one of the things we are 
going to do from this hearing--these hearings are nice, but if 
you don't do anything to follow up, short of a lot of rhetoric. 
So I will ask Mr. Meadows to head up an ad hoc group to bring 
together--I think we are going to have to bring in labor folks. 
Mr. Meadows' staff tells me that the Labor Committee would 
oversee the authorization of that law.
    But I think we are going to look at trying to get from the 
administration--I don't care which administration it is. But if 
there are problems with the law, or the law is 35 years old, it 
needs to be updated, and they should provide the leadership to 
give us some recommendations.
    And then also, the committee of jurisdiction, we will ask 
them if they would consider--probably technically, if they 
won't do it, then we can do a joint one, or we could do it 
ourselves, is follow up in Washington and drag the 
administrator in and some of the other folks and see. I will 
have to find out where they have attempted to do any changes in 
the law.
    How long have you been with them?
    Mr. Lichtenfels. Five years.
    Mr. Mica. Any attempt that you know of?
    Mr. Lichtenfels. No major attempt.
    Mr. Mica. All right. Well, maybe this will spark or be the 
genesis for looking at the law itself.
    How many inspectors do you all have? What is your budget?
    Mr. Lichtenfels. Metal/nonmetal has about 350 inspectors 
total, about 600 FTE.
    Mr. Mica. Three hundred and fifty inspectors?
    Mr. Lichtenfels. Yes.
    Mr. Mica. And what is your budget?
    Mr. Lichtenfels. The budget was approximately $9 million 
prior to sequestration.
    Mr. Mica. Now, I saw 143--was that metal and coal? $154 
million in 2011, $154 million in fines.
    Now, what is nonmetal? Do you know?
    Mr. Lichtenfels. I don't have it with me, sir.
    Mr. Mica. But most of that is in coal?
    Mr. Lichtenfels. Um ----
    Mr. Mica. Okay. So you don't know how much was collected in 
fines?
    Mr. Lichtenfels. No. I don't have that data.
    Mr. Mica. Do you know from last year?
    Mr. Lichtenfels. I don't have it with me.
    Mr. Mica. It is interesting. One fellow here said $143,000 
in fines to that one company, and I am sure that that is just 
part of the cost because they probably had to retain counsel or 
in-house counsel and the time spent appealing.
    You had cited 3,000 citations. What year was that in?
    Mr. Lichtenfels. That was in 2012.
    Mr. Mica. In 2012?
    Mr. Lichtenfels. Two thousand citations that were 
accomplished, I believe.
    Mr. Mica. Two thousand citations in 2012, and you don't 
know how much the fines were. You said 67 percent were what?
    Mr. Lichtenfels. Settled without further litigation.
    Mr. Mica. So were they all litigated or contested?
    Mr. Lichtenfels. No, no. Those were ----
    Mr. Mica. Some people just pay up and give up, give up and 
pay up?
    Mr. Lichtenfels. Right; yes. Yes.
    Mr. Mica. Sixty-seven percent, I am really curious about 
the figure. Please provide that to the committee, and the total 
fines for 2,000. I am just curious as to what the average fine 
was and was there a category of lead fines and violations of 
the 2,000?
    Mr. Lichtenfels. The standard most frequently cited?
    Mr. Mica. Yes, right. What is the violation most ----
    Mr. Lichtenfels. Typically, electrical violations. Guarding 
used to be number one.
    Mr. Mica. What? Guarding?
    Mr. Lichtenfels. Guarding used to be the number-one cited 
standard.
    Mr. Mica. I am sorry. I didn't, again, understand you. 
Guardian?
    Mr. Lichtenfels. Guarding violations.
    Mr. Mica. Guarding?
    Mr. Lichtenfels. Yes.
    Mr. Mica. Guarding the ----
    Mr. Lichtenfels. Conveyor belts, guarding of conveyor belts 
to prevent accidental contact.
    Mr. Mica. Oh, okay. It is an actual guard?
    Mr. Lichtenfels. Yes.
    Mr. Mica. Okay. And that was one, actually, that was cited 
quite a bit by the panelists as you all not having consistent 
standards.
    Mr. Lichtenfels. Yes.
    Mr. Mica. So the highest violation in the past has been on 
an infraction for which you don't have the standards. Is that 
what you are testifying?
    Mr. Lichtenfels. What I would like to say, Mr. Chairman, is 
that in 2010 we developed a PowerPoint to provide guidance to 
industry, and it was in cooperation with the industry, the 
National Stone, Sand and Gravel Association and a number of 
other associations, and we put the first PowerPoint out on 
guarding conveyors, and we followed it up in 2012 with a second 
PowerPoint on guarding everything else. And since that point, 
the guarding violations are down 40 percent. So the effort was 
successful.
    Mr. Mica. So there has been--that is no longer your primary 
violation?
    Mr. Lichtenfels. Right.
    Mr. Mica. I think what you heard here today was a plea for 
some consistency and common sense. The other thing, too, is you 
do not--instead of fining them, do you not write them a warning 
or something and say--like this belt that they showed, we had 
one belt on the screen and the other one from a harness that 
they brought here. If it appears to be fraying, can you say, 
``In 30 days correct the situation or you will be fined''? I 
mean, do you approach it from a standpoint of having them 
actually take some action, or is this just fine city, where you 
come in and levy the fine?
    Mr. Lichtenfels. The Mine Act requires an MSHA inspector to 
cite a violation if he sees it.
    Mr. Mica. The what?
    Mr. Lichtenfels. The Mine Act requires an MSHA inspector to 
cite ----
    Mr. Mica. Is that your interpretation, or is that ----
    Mr. Lichtenfels. Yes, it is. Yes.
    Mr. Mica. Well, see, there again, I think that ----
    Mr. Lichtenfels. If I could answer ----
    Mr. Mica. The law--we might want to look at that. I am not 
as familiar with MSHA. I don't have mining that I know of in my 
district. I would have to check with the CIA on that.
    [Laughter.]
    Mr. Mica. In any event, just a sort of commonsense 
approach. I remember my dentist, who has since passed away, 
probably from dealing with OSHA. But I went in one day to get 
my teeth cleaned or something, some torture he did to me, and 
he shows me a bottle of Whiteout. He had gotten fined with OSHA 
for having this chemical, a bottle of Whiteout on his desk. We 
went to town on that one. I thought we had changed some of the 
procedures for OSHA to give some warning. Maybe we need to go 
back and look at your agency.
    So three guys show up at one plant? Is this the nonmetal, 
your 350?
    Mr. Lichtenfels. Yes, yes.
    Mr. Mica. And how many mines do the 350 cover?
    Mr. Lichtenfels. Slightly over 12,000 mines.
    Mr. Mica. Twelve thousand? So they try to visit once or 
twice a year?
    Mr. Lichtenfels. The Mine Act requires underground mines to 
be inspected four times a year and surface mines two times a 
year.
    Mr. Mica. Four and two. And you are meeting that?
    Mr. Lichtenfels. Yes.
    Mr. Mica. Okay. And they show up in pairs of three 
sometimes? Is that customary?
    Mr. Lichtenfels. That wouldn't be customary, no. Normally 
it is one ----
    Mr. Mica. I know that sounds kind of rude, rude to show up 
to someone who hasn't had any fines. We heard that testimony 
today. Have you heard that incident, where three show up and 
say, you guys haven't been fined, we are going to find 
something, and then harass them?
    Mr. Lichtenfels. No, I was not aware of that.
    Mr. Mica. Do these guys, the operators, have some ability 
to--not whistle blow, but to let the agency know that there are 
people who are exceeding reasonable approaches to enforcement?
    Mr. Lichtenfels. We have formed alliances with a number of 
state associations, and we ask ----
    Mr. Mica. But someone overseeing the 350, or you, is the 
only thing for them to do is call you up anonymously and say 
they busted our chops and they are just not being fair? How 
does someone say that there are poor performers? I mean, you 
probably have 325 of these guys who are doing their job every 
day, minding their P's and Q's, but it sounds like you have 
some people who are harassing folks unduly. Is there an appeals 
process or some way that they could whistle blow?
    Mr. Lichtenfels. There is no formal process, but we do get 
phone calls and emails and letters, and we respond ----
    Mr. Mica. I think that is another thing, Mr. Meadows, when 
we are looking at revising the law--I mean, the reference would 
tell us that every dog has his day in court, but it doesn't 
sound like every mine operator has a fair process.
    Mr. Lichtenfels. There is a formal process for contesting a 
violation.
    Mr. Mica. But that is not what I am talking about. That 
sounds like it is fairly expensive. Also, I would like to see 
some resolution. Maybe we can get these things over in a hurry. 
I think the first thing is the responsibility needs to be 
changed just from the enforcement. I could see a certain kind 
of violation where they would be cited and fined immediately, 
but others in which there is some ability to correct the 
situation, and then a fine imposed if they don't comply.
    So I think we need to go back and look at the whole law and 
make it make a little bit more sense. I would like to see the 
recommendations, and I think we could convene with some of your 
folks, too.
    The other thing, too, is I heard that there are 
international standards?
    Mr. Lichtenfels. Yes.
    Mr. Mica. And you all comply to international standards, I 
imagine. And then you go above and beyond that for U.S. 
standards. Would that be a fair description?
    Mr. Lichtenfels. There are consensus standards such as the 
National Electric Code, the ISO standards, and various other 
standards. The mine standards took those into consideration 
when they were drafted, but they were drafted in the mid-1980s. 
Most of them accept the prior standards that were in effect 
from years before that.
    Mr. Mica. And again, I think it is important that that be 
updated. On mine standards, is there like an international--I 
don't know. Again, I am learning. Is there an international 
mine safety standards panel within whatever it is?
    Mr. Lichtenfels. There are some international committees.
    Mr. Mica. Do we belong?
    Mr. Lichtenfels. We participate, yes.
    Mr. Mica. And also for the record, maybe you could tell us 
the last participation, find out from your folks what our 
participation level has been, and it would also be interesting 
where we differ, where the United States has different 
standards from the international, because it sounds like even 
the manufacturers are having difficulty getting standards out 
of your agency. Again, the best practices, that is what we 
want, or the best configuration of equipment.
    Mr. Lichtenfels. If I could address two of those issues, 
the fall protection was an example of what we did to try to 
clarify a standard. Many of our standards are considered 
performance standards where the operator finds the best way to 
comply with the standard, and then the inspector shows up and 
decides whether it meets our standards. It is difficult because 
it is not specific in many cases. But we give the operator 
leeway to try to comply with it.
    One of the problems with the fall protection standard that 
was read this morning was that it didn't have a number of what 
height there was a danger of falling from. It just said where 
there is a danger of falling. So we enlisted the industry, the 
inconsistency problem, what is a hazard, what is not a hazard, 
and we by policy letter adopted a portion of the OSHA standard 
that said anything above 6 feet is a hazard and needs to have 
fall protection. I think it was well-received by industry, that 
they now had a number that they could comply with and at least 
made it a little more clear, and we tried to do that with fall 
protection, and we tried to do the same thing with the guarding 
PowerPoints, and I think that has been well-received by 
industry. Our hope is to continue to do that as these issues 
come up.
    Mr. Mica. Thank you.
    Mr. Meadows, our Vice Chairman, go ahead.
    Mr. Meadows. Thank you, Mr. Chairman.
    And I understand that you are not the one who is doing 
these inspections. I saw you over there writing copious notes. 
Is there anything that alarms you today about what you have 
heard here from our three previous witnesses?
    Mr. Lichtenfels. Well, I am concerned about the 
inconsistencies, and if three people showed up for that 
purpose, I am a little concerned about that, and I will look 
into that.
    Mr. Meadows. But it is not just the three people because we 
had--I mean, the majority of the people here stood up and said 
the same thing.
    Mr. Lichtenfels. Yes.
    Mr. Meadows. So, inconsistencies. So how do you, as a 
deputy administrator, plan to change that?
    Mr. Lichtenfels. Well, I think we are making some headway. 
I believe that, with the training that we have put in place, 
there have been fewer complaints.
    Mr. Meadows. In your budget you say training, but your 
budget--and you had renamed something to talk about how you 
were going to train, and I think in your testimony you talk 
about renaming it, but your budget doesn't reflect a training 
emphasis. It reflects an enforcement emphasis. So why would 
your budget not match with your testimony?
    Mr. Lichtenfels. What I am referring to is training our own 
inspectors.
    Mr. Meadows. Oh. So you are going to support training for 
your inspectors?
    Mr. Lichtenfels. No. No, sir. We have been training our 
inspectors. We ask them to get 48 hours of training every two 
years.
    Mr. Meadows. To write better citations? What do you do?
    Mr. Lichtenfels. To promote consistency, to understand the 
standards. We go over a large number of subjects.
    Mr. Meadows. So do you give them raises based on how 
consistent they are?
    Mr. Lichtenfels. No, sir. That is not the way ----
    Mr. Meadows. So they could be inconsistent and still get a 
raise.
    Mr. Lichtenfels. They get evaluated by their supervisor 
based on their performance.
    Mr. Meadows. So that performance is based on how many 
citations they write?
    Mr. Lichtenfels. No, sir.
    Mr. Meadows. So what is your matrix for evaluating their 
performance?
    Mr. Lichtenfels. Do they complete their inspections.
    Mr. Meadows. So as long as they do two inspections on 
surface mines ----
    Mr. Lichtenfels. That is only part of it, sir. There are 
reports they have to complete, and the citations ----
    Mr. Meadows. That is what I am trying to understand. I 
mean, how do you evaluate whether they are doing a good job or 
not?
    Mr. Lichtenfels. The procedure is the supervisor in the 
field offices reviews everything that is written by an 
inspector.
    Mr. Meadows. So he reviews the citations that are written 
by the inspector?
    Mr. Lichtenfels. Yes, and he travels with that inspector at 
least once a year, but in most cases more often, to evaluate 
their performance in the field.
    Mr. Meadows. Is there a slide? Can you put up that slide?
    This slide indicates a downward trend from 2000 to 2012 in 
terms of the incident rate on aggregate operations. And you can 
see it was trending down, and then all of a sudden what we saw 
is in about 2007 a huge spike in fines. There didn't seem to be 
really any correlation between fines and safety according to 
this particular one. It looks like fines went up 300 percent, 
and yet there is no correlation. Can you explain why that is?
    Mr. Lichtenfels. Part 100, which determines how a penalty 
is assessed.
    Mr. Meadows. What was that?
    Mr. Lichtenfels. Part 100, 30 CFR Part 100. That is the 
standard that determines how a citation--what--the assessment 
for a citation. That was revised in 2007.
    Mr. Meadows. Who revised it? Congress didn't revise it; is 
that correct?
    Mr. Lichtenfels. MSHA revised the standard.
    Mr. Meadows. So that is something that you ----
    Mr. Lichtenfels. That was based on following the 2006 
disasters that occurred, and Congress felt that the penalties 
may not have been high enough.
    Mr. Meadows. But we see Congress was wrong there. I mean, I 
know that comes as a shock to everybody.
    [Laughter.]
    Mr. Meadows. But if you are saying that Congress said there 
is a direct correlation with fines, this chart would say that 
there is not. Do you agree with that?
    Mr. Lichtenfels. It certainly looks that way.
    Mr. Meadows. Why don't we go back to the pre-2006 way of 
doing business? You know, we are losing jobs here. It boils 
down to we may get to zero fatalities. The way that we get to 
zero fatalities is if we have zero jobs, we will get there. I 
mean, that is how you get there.
    So my concern is that for every time we make burdensome 
regulations, it means, as my colleague from Virginia pointed 
out, it means jobs going to China, and we can't afford any more 
jobs going to China. Do you believe we can afford any more jobs 
going to China?
    Mr. Lichtenfels. Jobs are very important, sir.
    Mr. Meadows. So you wouldn't be in favor of anything that 
sends more jobs to China?
    Mr. Lichtenfels. No.
    Mr. Meadows. Okay. So let's go back to the citations, then. 
So if we went back to the 2006 way of doing citations, do you 
see that making any effect really in terms of anything? Because 
it is trending down anyway at this point.
    Mr. Lichtenfels. If I could say that MSHA is in the process 
of revising Part 100. It has been sent over ----
    Mr. Meadows. To make it worse, or better?
    [Laughter.]
    Mr. Lichtenfels. It will be put out for comment. OMB is 
reviewing it. It will be put out for comment, and then ----
    Mr. Meadows. Okay. Is there a matrix today where if I had a 
certain kind of violation, I know that I am facing a $1,000 
fine?
    Mr. Lichtenfels. It can be determined through Part 100, 
yes.
    Mr. Meadows. So there is a matrix. You could give me this 
thing that says that if I have a seatbelt that is frayed, I 
know exactly what the charge is going to be. I don't believe 
that ----
    Mr. Lichtenfels. It could be provided, yes.
    Mr. Meadows. What do you mean, it could be provided? Has it 
been provided to all of these guys here?
    Mr. Lichtenfels. There is a point system that is used for 
the assessment process that is based on the history of previous 
violations at a mine.
    Mr. Meadows. Okay, that hits on another area, the history 
of previous violations. We heard testimony earlier from the 
Association where they talked about that it is easier to just 
pay some of the fines. The problem with paying the fines is 
that when you do that, you now have a history of violations. So 
it requires them to hire litigation to go after defending 
themselves on some of the ridiculous stuff we have seen here 
today, because if they don't, then they are what you would call 
an habitual violator, and that is not fair. Instead of just 
saying we are going to make you have to defend yourself 
because, if not, we are going to come back and we are going to 
penalize you greater. Is that true?
    Mr. Lichtenfels. History is considered as one of the 
factors. Yes, sir.
    Mr. Meadows. So it is true that if I don't appeal, that you 
are going to consider me a violator.
    Mr. Lichtenfels. The assessment is based on history.
    Mr. Meadows. Either way, it is a problem, as the Chairman 
has pointed out. Either way, it is a real problem. So when we 
see this, you are saying it is open now for comment. Comment 
from who? OMB is looking at it. Comment from the guys that you 
are fining, or comments from the 350 people that are working 
for you?
    Mr. Lichtenfels. No, that is for public comment.
    Mr. Meadows. So who has been noticed at this point for this 
public comment from OMB?
    Mr. Lichtenfels. I'm sorry?
    Mr. Meadows. Who has received the notice to make comments?
    Mr. Lichtenfels. It has not reached that stage yet, sir.
    Mr. Meadows. Okay. So ----
    Mr. Lichtenfels. It is the same review, and then there will 
be a proposed rule, and then there will be ----
    Mr. Meadows. So what is the causal point of why it is being 
reviewed? I mean, who decided that we are going to review that?
    Mr. Lichtenfels. I don't know that.
    Mr. Meadows. So, your boss?
    Mr. Lichtenfels. Somebody higher than me.
    Mr. Meadows. Somebody higher than you decided. And what was 
the causal reason why you are reviewing that?
    Mr. Lichtenfels. I don't know.
    Mr. Meadows. Can you get that to this committee?
    Mr. Lichtenfels. Yes.
    Mr. Meadows. Okay. I want to finish up, and I appreciate 
the Chair's indulgence. Let me finish up with just a couple of 
more.
    You mentioned PowerPoints, that you have come out with a 
few PowerPoints. Are those PowerPoints, if the miners follow 
those PowerPoints, you can assure us that there are not going 
to be citations with violations there?
    Mr. Lichtenfels. I would hope so.
    Mr. Meadows. You would hope so.
    Mr. Lichtenfels. Yes.
    Mr. Meadows. So will you, for the record, today say if they 
follow those and they get citations, that your agency will 
waive that? Will you say that for the record today?
    Mr. Lichtenfels. I will say if they follow that PowerPoint, 
they should not receive a citation.
    Mr. Meadows. I understand ``should not.'' But that's 
different. They should not have gotten some of the citations 
they have already gotten, in my opinion. What I am asking you 
is would you waive those and just concede that those are out of 
line?
    Mr. Lichtenfels. If they brought that PowerPoint in to 
prove their point, we would certainly consider that, sir.
    Mr. Meadows. I will tell you, this is very frustrating just 
to hear what we are hearing. We are talking about people's 
lives. We are talking about jobs. We are talking about putting 
people out of work.
    I want to finish with this last. You said that under MSHA, 
that you were required to write a citation. I have read through 
reams of this. Some people say that I just can't sleep, so I 
read all this crazy stuff, but it is your interpretation that 
it requires a citation. It sounds like there is a whole lot of 
discretion, because when I read it, it doesn't look like it 
requires a citation. My interpretation would be different than 
yours. Are you sure that the law says that you have to write a 
citation?
    Mr. Lichtenfels. That is our interpretation.
    Mr. Meadows. Well, let me show you how unfair that is.
    Mr. Lichtenfels. You have to observe a violation before you 
write it up.
    Mr. Meadows. Okay. That safety belt that is here, is the 
safety belt still here? Show that to the gentleman, because I 
know he didn't get to see it. Be careful, because you may trip 
over an MSHA violation right there.
    [Laughter.]
    Mr. Meadows. So is that something that you believe should 
have been cited?
    Mr. Lichtenfels. If Mr. Bratton said he had a letter from 
the manufacturer saying it was safe, I would think it should be 
okay.
    Mr. Meadows. So you are saying that it should have been 
cited, but ----
    Mr. Lichtenfels. The inspector who observed it apparently 
felt that way, sir.
    Mr. Meadows. Okay, and that brings me to my closing 
thought. If we put all of the discretion in the hands of 350 
inspectors, it depends on how bad of a morning they had. I can 
tell you, I would be wining and dining those guys, take them to 
dinner and making sure that they ----
    [Laughter.]
    Mr. Meadows. But it really depends on if they have a bad 
hair day on whether they are going to cite something. And with 
this particular thing, what you are saying is that if we get a 
letter that says that that is in compliance, that that citation 
should be what?
    Mr. Lichtenfels. I would think we should have ----
    Mr. Meadows. I know what you think, but let me just ask you 
----
    Mr. Lichtenfels. If it was brought to my attention, I would 
see that it was vacated.
    Mr. Meadows. All right. So any problems that we have here 
in western North Carolina, should we be bringing them to your 
attention?
    Mr. Lichtenfels. I would hope it doesn't need to be that 
way.
    Mr. Meadows. We have heard multiple complaints today. Who 
do we go to? Because I will tell you, if I don't get this 
fixed, I don't have a job.
    [Laughter.]
    Mr. Lichtenfels. The process is that we encourage all mine 
operators to do this, to discuss each situation with the 
inspector on the site, try to resolve it at that point.
    Mr. Meadows. But that doesn't happen.
    How many of you would agree that that happens on a regular 
basis, that the inspector on-site really tries to mitigate it 
and not write a citation? Does that happen?
    [Chorus of noes.]
    Mr. Meadows. So we have a problem maybe with the inspector 
just in my area, but I don't think so because we have gentlemen 
from other areas here as well.
    I appreciate the Chair's indulgence. I will yield back.
    Mr. Mica. Thank you.
    I recognize Dr. Roe.
    Mr. Roe. Thank you, Chairman.
    I think the Chairman brought up something a minute ago, 
that what we have done in this country is we have taken a set 
of laws and we have thrown the common sense out the window.
    Mr. Lichtenfels, I appreciate you being here. Let's take 
you off the job you have and put you back in the real world 
where all these people that you see here are trying to comply, 
trying to make a living, and trying to have a safe workplace. 
You saw Mr. McNeely. I read the statistics in his workplace, 
years without a violation. Would you feel safe putting that 
harness on and doing anything? I would. Would you feel safe in 
that?
    Mr. Lichtenfels. He says he got a letter from the 
manufacturer.
    [Laughter.]
    Mr. Lichtenfels. I didn't see the situation. Yes, sir, I 
would.
    Mr. Roe. Okay. Thank you. I would, too. I absolutely would. 
I would rappel off the fire tower on the Fourth of July. It is 
amazing what you will do for votes.
    [Laughter.]
    Mr. Roe. The belt that we saw was not unsafe, but what Mr. 
Meadows just got through saying is that businesses like ours, 
30-something years, private businesses, cannot fight you 
people. We write the check, and then we have affirmed that we 
are not a safe workplace, so when you come back again, you find 
something and the fines go up. It is a Catch-22, and I think 
you have to put some common sense back in. You can sense my 
frustration, and I am putting you back in the private sector 
where you spent 20-something years. I know you did.
    Mr. Lichtenfels. Yes, sir.
    Mr. Roe. And you would look at that and if you were working 
back where you were, you would be offended by this right here, 
and your frustration--you could try to run these businesses, 
and I applaud your effort at MSHA trying to make it safe for 
folks and clearly saying that a surface mine is safer than a 
deep mine, there is no question about that. We know what 
happened at the Big Branch Mine just a couple of years ago.
    The fatalities you mentioned, obviously zero should be our 
goal in the workplace. The gentleman who had a heart attack in 
Mr. McNeely's shop, if he died on the spot, would that count as 
a fatality, a mine fatality?
    Mr. Lichtenfels. Most likely not, sir.
    Mr. Roe. Okay. It would not, but it was a violation. He was 
removed, and that was considered an injury that day when he 
left. So at least fatalities are not medical things, if a 
diabetic had a problem or a medical ----
    Mr. Lichtenfels. Right.
    Mr. Roe. Okay, that helps me there. And how do you explain 
the safety record of MSHA versus the industry being higher? How 
do you look those folks in the eye and write them a citation?
    Mr. Lichtenfels. Well, that is a good question, and we are 
taking that seriously, and we meet on a monthly basis at 
headquarters to review the issue. A large portion of those 
claims are hearing loss, so it is difficult. The rest are just 
strains and sprains, and we are certainly dealing with it.
    Mr. Roe. Okay. And how much of the money that you take in 
comes in fines? I think Mr. Meadows made a great point a minute 
ago about how like minds think, but I am thinking if you put a 
training video on the web, that is your video. Why in the world 
should they have to bring. It is yours. You created it, and if 
that is what you are supposed to follow, is it like the IRS, 
where if you follow my advice, you are still going to need? 
Because that is exactly what happens with the IRS, and that is 
one of the frustrations that the American people have. If they 
follow what they believe is the correct thing to do, shouldn't 
they be okay?
    Mr. Lichtenfels. Yes, sir.
    Mr. Roe. Okay. So if they follow those videos that are on 
the--the PowerPoints that you have on the web, I am hearing you 
right out here for the record, that should just be wiped off, 
cleaned off the slate.
    Mr. Lichtenfels. We should certainly review that and 
discuss it. Yes, sir.
    Mr. Roe. Why does it need review?
    Mr. Lichtenfels. Well, if we put a video out there, we 
should make sure that it is accurate. I agree.
    Mr. Roe. I totally agree with that, but if they follow one 
you put out ----
    Mr. Lichtenfels. Right.
    Mr. Roe.--and the international standards of, let's say, a 
company like Caterpillar, which was mentioned today, following 
those fall standards that are out there, if they know right now 
that that is a violation, how in the world do you match those 
two?
    Mr. Lichtenfels. It is difficult. I understand that. I was 
in the industry for 43 years, and I do understand it. But the 
point is each situation has to be evaluated on a case-by-case 
basis.
    Mr. Roe. But if you follow the rules, which these people 
are, you shouldn't have to be explaining to somebody why you 
follow the rules. It shouldn't even be an issue. Do you agree 
with that?
    Mr. Lichtenfels. Yes, sir.
    Mr. Roe. Does any of the fine money that they pay in the 
millions, tens of millions of dollars, go back into the 
training we have talked about for compliance? Where does it go?
    Mr. Lichtenfels. The money goes to the Treasury.
    Mr. Roe. Treasury?
    Mr. Lichtenfels. Yes, sir.
    Mr. Roe. Okay. So that would be something we would have to 
do legislatively.
    Mr. Lichtenfels. Yes, sir.
    Mr. Roe. That is something we could look at.
    With that, I will yield back.
    Mr. Mica. Thank you.
    Congressman Griffith?
    Mr. Griffith. Thank you, Mr. Chairman.
    Let me congratulate you on being here today. I know 
somewhere in some room in Washington, you drew the short straw.
    [Laughter.]
    Mr. Griffith. And I do appreciate that. And I want to 
congratulate you on recognizing that there have been some 
problems and that you all are working on consistency. Your 
testimony here today, I understand you are in a tight spot, 
that you are trying to defend the policies that you didn't 
necessarily make. But at the same time, it is hard for you to 
make blanket statements, ``Yes, I will fix this,'' when you may 
not have that authority to fix this or that, and I appreciate 
that.
    Understand, I am coming up with some tough questions here 
in a minute.
    [Laughter.]
    Mr. Griffith. But I did want to get that out there because 
I think you have done a nice job with a difficult situation.
    And I also want to say that I think one of the problems 
that I hear about all the time--it hasn't come up previously--
which you are not an example of is that apparently there are a 
lot of inspectors being hired who have limited or no experience 
in the mining industry, and they are coming in after having 
either limited or no experience and becoming mine inspectors. 
And so I appreciate the fact that you do come from the 
industry, and I would just make that note that there are a lot 
of folks out there that are frustrated with somebody who might 
have six months in a mine, like some of the mine inspectors, 
and after they go through a training class they are out telling 
folks with experience like yours how to do the job that these 
folks have been doing very safely for a number of years. So I 
would just make that comment.
    Now, these questions that I am going to ask you are not 
directed at you personally, but they are tough questions, and I 
think we need answers to them.
    Do you know of or do you have any reason to believe that 
there is an official quota system with the MSHA fine and 
citation process?
    Mr. Lichtenfels. We have made it clear there is no quota 
system.
    Mr. Griffith. Is there any unofficial MSHA fine or citation 
system?
    Mr. Lichtenfels. Did you say an MSHA quota system again?
    Mr. Griffith. Yes, sir. I am asking you about unofficial.
    Mr. Lichtenfels. No unofficial.
    Mr. Griffith. Now, I am going to bore down into this a 
little bit further, because sometimes there can be no official 
or maybe not even a recognized unofficial system, but sometimes 
policies create a system even if the people who are creating 
those policies don't intend to. A large police department 
somewhere in Virginia once created a system that they didn't 
see as quotas at the time until a judge pointed it out to them 
that they had created a quota system. Here is what they were 
doing. If you wrote four tickets, you got moved up the line to 
get the newest patrol car, and all the guys wanted the newest 
patrol car.
    So I want you to think about it and think about your 
answer. Is there any system where the people who get those--I 
saw that chart with the big spike. Is there any system whereby 
if you are writing more citations, that you are getting 
promotions, I know it wouldn't be new squad cars but some kind 
of new equipment, a new car to drive, a newer car to drive? I 
mean, is there some kind of system that may not have 
intentionally been set up as a quota system but which could 
have the possibility of setting up a quota system because there 
are rewards to the inspectors for writing the citations?
    Mr. Lichtenfels. None that I am aware of, sir.
    Mr. Griffith. Can I ask you to go back and look and see if 
there are any systems whereby if you write more citations or 
you get more fine money in, one is that placed in your 
personnel jacket as to what your fines are and how many 
citations you write; and two, are there any side benefits to 
writing more citations that nobody really thought about? I am 
not accusing you of doing this intentionally, but they might 
have unintentionally created a bonus a reward system, in 
essence a quota system? Would you go back and check on that, 
and could you report back to the subcommittee on that?
    Mr. Lichtenfels. Yes, sir.
    Mr. Griffith. I would greatly appreciate that. Again, I did 
not mean that personally, but I have seen this happen sometimes 
unintentionally, because when you look at the Mine Safety Act, 
we can agree or disagree on whether or not you should write the 
citation. But when you see that chart, and I had not seen that 
chart before this point, it is pretty telling that from 1977 
until whenever that spike was--let me see that chart again, 
that graph that you had. There you go. It looks like somewhere 
about 2005 to 2008, dealing with the same law, we had a major 
shift in policy.
    So if it isn't that there is some kind of inadvertent bonus 
system, then there must have been a shift in the policies 
coming out of the administration of MSHA and something that 
MSHA may want to take a look at and that we may want to take a 
look at. But you would agree that that spike indicates that 
there must have been some kind of shift in policy.
    Mr. Lichtenfels. There was a change in Part 100 in the 
assessment standards.
    Mr. Griffith. And who was responsible for that? That was 
MSHA's interpretation?
    Mr. Lichtenfels. Yes, sir.
    Mr. Griffith. Of some regulations?
    Mr. Lichtenfels. Yes, sir.
    Mr. Griffith. And just for the record, I don't believe you 
were with the agency at that time; is that correct?
    Mr. Lichtenfels. I started in 2008.
    Mr. Griffith. Okay. So you didn't have anything to do with 
that, and I appreciate that.
    Those are my concerns. I do appreciate the fact that you 
are after the consistency issue. I think it is more than just 
the guards. Anything that you can do in your position, having 
been in industry, to make these things make more sense so that 
people feel comfortable. Everybody wants us to have mine 
safety, everybody. We are all in agreement on that. And what 
the operators across the board are saying is give us some 
consistency, let us talk to you about the policy, which I think 
you have indicated that you are open to. Let us talk about the 
policies and make sure the policies make sense, and then let's 
have some consistent enforcement so that we are following the 
rules and we are following what we think is the speed limit 
sign that says 35, and we are driving at 35 and not being fined 
when we are driving at 35, and somebody tells us, well, it says 
35, but we really meant 28. Can you do that for us and keep 
working on that?
    Mr. Lichtenfels. Yes, sir.
    Mr. Griffith. I appreciate that very much, and I appreciate 
this hearing, Mr. Chairman. I think it is extremely important 
that we had this. Congressman, thank you for bringing us to 
your district, and I yield back.
    Mr. Mica. Thank you. I do want again to thank Congressman 
Meadows for bringing this to my attention and making it his 
priority for the subcommittee and our committee's power.
    Again, these hearings are nice, but we do need to follow 
up, so we will have a number of follow-up items.
    Is this the first time you have testified before a 
committee of Congress?
    Mr. Lichtenfels. Yes, sir.
    Mr. Mica. Who is the administrator?
    Mr. Lichtenfels. Neal Merrifield.
    Mr. Mica. I guess he regularly testifies?
    Mr. Lichtenfels. I don't know that he has either. Normally, 
it is the Assistant Secretary.
    Mr. Mica. Well, we will also contact the committees of 
legislative authorization and jurisdiction. I will ask Mr. 
Meadows to kind of lead that effort. There are two ways we can 
tackle this. The thing that concerns everybody is that people 
feel they have lost discretion in the way these fines are 
applied, and then trying to get common sense back into play, 
but I imagine those fines also cover coal?
    Mr. Lichtenfels. Yes, I would guess.
    Mr. Mica. Okay. If you could get us that information, we 
will put it in the record because I think it is important.
    But I think follow-up is key to making a change in a law 
that is 35 years old that has been cited as part of the 
problem, and then trying to make certain that the folks are 
treated fairly, to have some due process, or just some process.
    Again, the goal is safety for workers in the workplace. We 
would like to get fatalities to zero, if that is at all 
humanely possible. We have made some progress, but in the 
meantime, again, some over-regulation, over burden, we end up 
losing more and more jobs out of the United States and closing 
down industry and business and opportunity.
    So with that being said, again, we appreciate your coming 
forward today. We will follow up.
    Mr. Meadows, any closing comments?
    Mr. Meadows. No, just to thank you for coming. It is never 
fun to come. You knew when you came you were going to have to 
face the medicine, and I appreciate your willingness to do 
that.
    I look forward to working with you to solve this issue. I 
believe that it is solvable. I heard testimony that what we 
want are safe mines. I know Mr. McNeely, and the people that 
work for him are his family. Some are literally his family, but 
they are his family, and that is what this is across the board. 
I see some of these guys and their family members, and they 
don't want to operate in an unsafe environment.
    So we have two goals. They want to have safe mines. Let's 
work together to make sure that we don't put people out of 
business.
    With that, I just want to say thank you all, and I will 
yield back to the Chairman.
    Mr. Mica. With that, I thank the witnesses. I thank those 
who came out today to join us. I am particularly grateful to 
the community of Bakersville, and also Mitchell County for the 
use of these historic facilities at this rather historic 
hearing.
    There being no further business before the Subcommittee on 
Government Operations, this hearing is adjourned. Thank you.
    [Whereupon, at 12:16 p.m., the committee was adjourned.]


                                APPENDIX

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