[House Report 110-473]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-473

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

 
 GRANTING THE AUTHORITY PROVIDED UNDER CLAUSE 4(c)(3) OF RULE X OF THE 
RULES OF THE HOUSE OF REPRESENTATIVES TO THE COMMITTEE ON EDUCATION AND 
     LABOR FOR PURPOSES OF ITS INVESTIGATION INTO THE DEATHS OF 9 
INDIVIDUALS THAT OCCURRED AT THE CRANDALL CANYON MINE NEAR HUNTINGTON, 
                                  UTAH

                                _______
                                

  December 5, 2007.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

  Ms. Slaughter, from the Committee on Rules, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                       [To accompany H. Res. 836]

    The Committee on Rules, to whom was referred the resolution 
(H. Res. 836) granting the authority provided under clause 
4(c)(3) of rule X of the Rules of the House of Representatives 
to the Committee on Education and Labor for purposes of its 
investigation into the deaths of nine individuals that occurred 
at the Crandall Canyon Mine near Huntington, Utah, having 
considered the same, report favorably thereon without amendment 
and recommend that the resolution be agreed to.

                       PURPOSE OF THE RESOLUTION

    The purpose of H. Res. 836 is to grant the authority 
provided under clause 4(c)(3) of rule X of the Rules of the 
House of Representatives to the Committee on Education and 
Labor for purposes of its investigation into the deaths of nine 
individuals that occurred at the Crandall Canyon Mine near 
Huntington, Utah.

                       SUMMARY OF THE RESOLUTION

    H. Res. 836 applies to the investigation by the Committee 
on Education and Labor into the deaths of nine individuals that 
occurred at the Crandall Canyon Mine near Huntington, Utah, 
including the events that may have led to those deaths and into 
the administration of relevant laws by government agencies, 
including the Department of Labor and the Mine Safety and 
Health Administration, and into other related matters.
    Clause 4(c)(3) of rule X of the Rules of the House of 
Representatives, as applied to the Education and Labor 
Committee by H. Res. 836, would allow the Education and Labor 
Committee to adopt a rule authorizing and regulating the taking 
of depositions by a member of or counsel to the committee, 
including by issuing a subpoena. Clause 4(c)(3) further states 
that a committee rule may provide that a deponent be directed 
to subscribe to an oath or affirmation before a person 
authorized by law to administer oaths and affirmations. A 
committee rule shall ensure that the members and staff of the 
committee are accorded equitable treatment with respect to 
notice of and a reasonable opportunity to participate in any 
proceedings thereunder. Finally, clause 4(c)(3) provides that 
deposition testimony retain the character of discovery until 
offered for admission into evidence before the committee, at 
which time any proper objection will be timely.

              BACKGROUND AND SUMMARY OF THE INVESTIGATION

    The Committee on Education and Labor has been investigating 
the events leading up to the deaths of six miners at the 
Crandall Canyon Mine in Utah and the deaths of three more 
individuals who were part of the effort to rescue the first six 
miners.

Crandall Canyon Mine accident

    Crandall Canyon Mine, also known as the Genwal Mine, is a 
bituminous coal mine. A subsidiary of UtahAmerican Energy, 
headquartered in Utah and itself a subsidiary of Cleveland's 
Murray Energy Corporation, operates Crandall Canyon Mine and 
holds a one-half ownership interest in the mine. The owner of 
Murray Energy Corp. is Robert Murray. On the morning of Monday, 
August 6, 2007, coal pillars (essentially the walls) in the 
mine exploded, trapping six miners inside: Kerry Allred, Luis 
Hernandez, Brandon Phillips, Carlos Payan, Manuel Sanchez, and 
Don Erickson.\1\ The miners were trapped at a depth of 
approximately 1500 feet below the surface.\2\ The same day, the 
U.S. Department of Labor's Mine Safety and Health 
Administration (``MSHA'') was notified of the incident.\3\
---------------------------------------------------------------------------
    \1\Ben Winslow & Jared Page, Drill May Have Missed Trapped Utah 
Miners, Deseret Morn. News, Aug. 10, 2007. While it initially was 
believed that an earthquake caused the mine to collapse as seismic 
waves were recorded at a magnitude of approximately 3.9 on the Richter 
scale, seismologists later confirmed that the collapse itself was the 
seismic activity. Stephen Speckman & Ben Winslow, Search is Over, 
Deseret Morn. News, Sept. 1, 2007.
    \2\William Branigin, Rescue of Trapped Miners Lags, Wash. Post, 
Aug. 8, 2007, at A4; Sara Israelsen, Ben Winslow & Joe Bauman, Miners 
Trapped, Crews Working Around the Clock to Reach 6, Deseret Morn. News, 
Aug. 7, 2007.
    \3\Mine Safety and Health Administration, U.S. Dep't of Labor, 
Genwal Resources: Chronology of Updates (2007), http://www.msha.gov/
genwal/CrandallCanyonupdates.asp.
---------------------------------------------------------------------------
    Three days later, in the evening of Thursday, August 9, 
rescuers drilled a hole into the suspected location of the 
trapped miners.\4\ The hole was drilled to allow not only for 
air samples to be taken but also for the lowering of a 
microphone to listen for sounds of life. The microphone was 
lowered the morning of August 10 but picked up no sounds of 
human activity. In addition, while the air sample initially 
taken concluded the atmosphere was hospitable, these samples 
turned out to be from the bore hole itself, not the mine 
cavity. Simultaneously, another hole was drilled for insertion 
of a camera to obtain pictures of the miners.\5\ The camera, 
however, became too dirty and thus was unable to provide any 
images.\6\
---------------------------------------------------------------------------
    \4\Ben Winslow & Jared Page, Drill May Have Missed Trapped Utah 
Miners, Deseret Morn. News, Aug. 10, 2007.
    \5\Sonya Geis, Camera Yields no Images of Utah Miners, Wash. Post, 
Aug. 12, 2007, at A7.
    \6\Id.
---------------------------------------------------------------------------
    The next day, a third bore hole was started near the back 
of the mine, where there was a ventilation area; this is 
because miners are trained to go to these areas in the event 
that other escape routes are inaccessible. The bore hole was 
completed the following Wednesday, August 15, but equipment was 
unable to fit through a bend in the bore hole.
    On Thursday, August 16, 2007, ten days after the collapse, 
underground rescue teams were less than halfway through the 
rubble to the suspected location of the miners.\7\ Murray 
Energy CEO Bob Murray indicated that the rescue effort was 
progressing slowly because of the rescuers' need to shore up 
the mine walls with water jacks as they proceeded into the 
mine.\8\
---------------------------------------------------------------------------
    \7\Dennis Romboy & Pat Reavy, 3rd Bore Hole Being Drilled, Deseret 
Morn. News, Aug. 15, 2007.
    \8\Id.
---------------------------------------------------------------------------
    The rescue effort suffered a tragedy that same evening, 
when the mine burst as the result of one of the tunnel walls 
exploding.\9\ Although all rescue workers were pulled 
immediately from the mine, the blast had killed three of the 
rescuers and injured nine.\10\ The three deceased rescuers were 
Brandon Kimber, Dale Black, and Gary L. Jensen.\11\ As a result 
of these deaths and injuries to the rescue workers, MSHA 
suspended its underground rescue efforts.\12\
---------------------------------------------------------------------------
    \9\Ben Winslow & Pat Reavy, 3 Rescuers Killed, 6 Hurt, Deseret 
Morn. News, Aug. 17, 2007.
    \10\Id.
    \11\Id.
    \12\Mine Safety and Health Administration, U.S. Dep't of Labor, 
Genwal Resources: Chronology of Updates (2007), http://www.msha.gov/
genwal/CrandallCanyonupdates.asp.
---------------------------------------------------------------------------
    Later attempts to bore holes in the mine to detect signs of 
life were unsuccessful. A fourth bore hole was completed on 
Saturday, August 18.\13\ Rescuers were unable to detect any 
signs of life from the trapped miners, such as tapping or other 
banging.\14\ Fifth and sixth holes also failed to yield any 
results. The seventh bore hole was completed four days later on 
Thursday, August 30, showing the entire mine cavity filled with 
debris and mud.\15\ This finding effectively ended the search 
for the six miners.
---------------------------------------------------------------------------
    \13\Angie Welling, 4th Hole Yields No Clues about 6 Miners, Deseret 
Morn. News, Aug. 19, 2007; Karl Vick, Mine's 4th Hole Reveals No Signs 
of Life, Wash. Post, Aug. 19, 2007, at A10.
    \14\Angie Welling, 4th Hole Yields No Clues about 6 Miners, Deseret 
Morn. News, Aug. 19, 2007.
    \15\Stephen Speckman & Ben Winslow, 7th Borehole Leads to Rubble, 
Deseret Morn. News, Aug. 31, 2007.
---------------------------------------------------------------------------
    On Saturday, September 1, four weeks after the initial mine 
collapse, the Mine Safety and Health Administration officially 
ended the search for the miners.\16\ In early October, Murray 
Energy reportedly closed-off the mine entrances with concrete 
blocks, entombing the miners.\17\
---------------------------------------------------------------------------
    \16\Hearing on Current Mine Safety Disasters: Issues and Challenges 
Before the U.S. Senate Comm. on Health, Educ., Labor & Pensions, 110th 
Cong., 1st Sess. (Oct. 2, 2007) (statement of Kevin G. Stricklin, 
Administrator for Coal Mine Safety and Health, Mine Safety and Health 
Administration, U.S. Dep't of Labor). See also Stephen Speckman & Ben 
Winslow, Search is Over, Deseret Morn. News, Sept. 1, 2007.
    \17\Assoc. Press, Utah: Mine Where Men Were Trapped Is Sealed, N.Y. 
Times., Nov. 22, 2007 (citing Kevin Stricklin, Administrator for Coal 
Mine Safety and Health, Mine Safety and Health Administration).
---------------------------------------------------------------------------

Summary of congressional investigation

    The Education and Labor Committee's investigation of the 
Crandall Canyon Mine collapse to date has taken place in the 
form of requests for documents from the mine owners and 
government agencies, a subpoena for documents from the 
Department of Labor, staff presence in Utah during the rescue 
phase, subsequent staff interviews conducted in person and by 
phone with individuals near the mine in Utah, interviews 
conducted in Salt Lake City, and interviews conducted at MSHA 
District 9 headquarters in Denver, CO.
    On August 23, 2007, Education and Labor Committee Chairman 
George Miller wrote to U.S. Department of Labor Secretary 
Elaine L. Chao.\18\ In the letter, Chairman Miller asked that 
the Department direct MSHA to ensure all mines have adequate, 
approved Emergency Response Plans that are fully compliant with 
the law and that are implemented by the mine operators.\19\ The 
Committee further asked that the Department provide the 
Committee with copies of each approved plan on file with MSHA, 
an accounting of whether each mine has an approved plan, and an 
accounting of whether each mine has implemented its plan.\20\ 
The Labor Department replied to this request in writing on 
October 12.\21\
---------------------------------------------------------------------------
    \18\Letter from the Hon. George Miller, Chair, U.S. House Comm. on 
Educ. & Labor, to the Hon. Elaine L. Chao, Secretary, U.S. Dep't of 
Labor (Aug. 23, 2007).
    \19\Id.
    \20\Id.
    \21\Letter from the Hon. Richard E. Stickler, Asst. Sec'y for Mine 
Safety & Health, U.S. Dep't of Labor, to the Hon. George Miller, Chair, 
U.S. House Comm. on Educ. & Labor (Oct. 12, 2007).
---------------------------------------------------------------------------
    On August 27, 2007, Chairman Miller wrote to Michael 
McKown, General Counsel of Murray Energy Corporation.\22\ The 
purpose of the letter was to obtain documents related to the 
mine, the mine's lease, any communications between Murray 
Energy or its employees and the Department of Labor or its 
subsidiaries, and information related to the rescue 
efforts.\23\ Murray Energy began producing documents to the 
Committee on September 26 but has yet to complete its 
production.
---------------------------------------------------------------------------
    \22\Letter from the Hon. George Miller, Chair, U.S. House Comm. on 
Educ. & Labor, to Michael McKown, General Counsel, Murray Energy Corp. 
(Aug. 27, 2007).
    \23\Id.
---------------------------------------------------------------------------
    Also on August 27, Chairman Miller wrote to Secretary Chao 
seeking information about mining operations at the Crandall 
Canyon Mine.\24\ One week later, after MSHA officially ended 
its search for the lost miners, Chairman Miller again wrote to 
Secretary Chao, appending the August request with a request for 
documents and other information about the Labor Department's 
role in the mine rescue effort.\25\ While the Department 
provided the Committee with documents in response to these 
requests, the Committee did not believe the submissions were 
fully responsive.
---------------------------------------------------------------------------
    \24\Letter from the Hon. George Miller, Chair, U.S. House Comm. on 
Educ. & Labor, to the Hon. Elaine L. Chao, Secretary, U.S. Dep't of 
Labor (Aug. 27, 2007).
    \25\Letter from the Hon. George Miller, Chair, U.S. House Comm. on 
Educ. & Labor, to the Hon. Elaine L. Chao, Secretary, U.S. Dep't of 
Labor (Sept. 4, 2007).
---------------------------------------------------------------------------
    On September 11, 2007, the Labor Department expressed its 
concern that the Education and Labor Committee was conducting 
its own, parallel investigation of Crandall Canyon Mine.\26\ 
The Department stated that the congressional investigation 
would interfere with MSHA's own investigation of the 
accident.\27\
---------------------------------------------------------------------------
    \26\Letter from the Hon. Jonathan L. Snare, Acting Solicitor, U.S. 
Dep't of Labor, to the Hon. George Miller, Chair, U.S. House Comm. on 
Educ. & Labor (Sept. 11, 2007).
    \27\Id.
---------------------------------------------------------------------------
    Seeking more documents than provided regarding the 
Department's communications related to the mine collapse, the 
Education and Labor Committee issued a September 24, 2007 
subpoena to Secretary Chao for Department communications 
related to the August 6 disaster. In several respects, the 
subpoena narrowed the documents requested of the Department. 
Approximately two weeks later, Acting Solicitor for Labor 
Jonathan L. Snare expressed the Department's concern and 
surprise with the subpoena, stating that the Department either 
had responded to or was in the process of responding to the 
Committee's requests for documents.\28\
---------------------------------------------------------------------------
    \28\Letter from the Hon. Jonathan L. Snare, Acting Solicitor, U.S. 
Dep't of Labor, to the Hon. George Miller, Chair, U.S. House Comm. on 
Educ. & Labor (Oct. 5, 2007).
---------------------------------------------------------------------------
    On October 9, the Labor Department transmitted to the 
Committee a DVD-ROM with electronic documents (largely 
comprised of internal MSHA e-mails) and a collection of 
documents that were from, to, or referenced Robert Murray, the 
CEO of Murray Energy, on or after January 29, 2001.\29\ More 
recently, on November 30, the Department provided the Committee 
with a disk containing MSHA logbook information on the mine 
accident; the information originally was requested by the Labor 
Department's Office of the Inspector General.\30\
---------------------------------------------------------------------------
    \29\Letter from the Hon. Jonathan L. Snare, Acting Solicitor, U.S. 
Dep't of Labor, to the Hon. George Miller, Chair, U.S. House Comm. on 
Educ. & Labor (Oct. 9, 2007).
    \30\Letter from the Hon. Kristine A. Iverson, Asst. Sec'y for 
Congressional and Intergovernmental Affairs, U.S. Dep't of Labor, to 
the Hon. George Miller, Chair, U.S. House Comm. on Educ. & Labor (Nov. 
30, 2007).
---------------------------------------------------------------------------
    As noted above, the Committee also has undertaken efforts 
to interview several individuals with knowledge of the mine and 
the rescue efforts. Staff have spoken with family members of 
the miners and their counsel, officials at MSHA, seismologists 
at the University of Utah, as well as with the leader of the 
first off-site mine rescue team on the scene. The staff has 
received briefings from Richard Stickler, the Assistant 
Secretary of Labor for Mine Safety and Health, and Kevin G. 
Stricklin, the Administrator for Coal Mine Safety & Health at 
MSHA. The Committee continues on-going discussions with Labor 
Department and MSHA officials regarding the mine and the 
accident.
    Finally, on October 3, the Education and Labor Committee 
held a hearing entitled, ``The Perspective of the Families at 
Crandall Canyon.''\31\ Though this was not an investigative 
hearing, witnesses included relatives of the original miners 
and the rescue workers: (1) Steve Allred, brother of miner 
Kerry Allred; (2) Wendy Black, wife of miner Dale Black; (3) 
Michael Marasco, son-in-law of miner Kerry Allred; (4) Sheila 
Phillips, mother of miner Brandon Phillips; and (5) Cesar 
Sanchez, brother of miner Manuel Sanchez. Other witnesses 
included government officials and mining experts: (1) the 
Honorable Jon Huntsman, Jr., Governor of the State of Utah; (2) 
Wayne Holland, International Staff Representative for United 
Steelworkers; (3) Cecil Roberts, President of the United Mine 
Workers of America; and (4) Bruce Watzman, Vice President for 
Safety, Health, and Human Services for the National Mining 
Association.
---------------------------------------------------------------------------
    \31\Hearing on the Perspective of the Families at Crandall Canyon 
Before the U.S. House Comm. on Educ. & Labor, 110th Cong., 1st Sess. 
(Oct. 3, 2007).
---------------------------------------------------------------------------
    The Committee continues to review documents and testimony 
it has received during its investigation of the Crandall Canyon 
Mine accident.

                 BACKGROUND AND NEED FOR THE RESOLUTION

    The Supreme Court and congressional scholars have 
recognized that, despite silence on the issue in the 
Constitution, Congress does have the authority to conduct 
investigations.\32\ As the Court explained:
---------------------------------------------------------------------------
    \32\McGrain v. Daugherty, 273 U.S. 135 (1927); Morton Rosenberg, 
Congressional Research Serv., Investigative Oversight: An Introduction 
to the Law, Practice and Procedure of Congressional Inquiry (1995).

          A legislative body cannot legislate wisely or 
        effectively in the absence of information respecting 
        the conditions which the legislation is intended to 
        affect or change * * *. Experience has taught that mere 
        requests for such information often are unavailing, and 
        also that information which is volunteered is not 
        always accurate or complete; so some means of 
        compulsion are essential to obtain what is needed.\33\
---------------------------------------------------------------------------
    \33\McGrain, 273 U.S. at 175.

In furtherance of this, the Rules of the House of 
Representatives, which establish and convey authority to the 
congressional committees, provide such committees with the 
general tools needed to exercise investigative power.\34\ More 
specifically, rule XI of the Rules of the House of 
Representatives provides that:
---------------------------------------------------------------------------
    \34\Rules of the House of Representatives, Rule XI, 110th Cong. 
(2007).
---------------------------------------------------------------------------
           committees may set a quorum of no less than 
        two members for taking testimony and receiving 
        evidence;\35\
---------------------------------------------------------------------------
    \35\House Rule XI cl. 2(h)(2).
---------------------------------------------------------------------------
           witnesses at committee hearings are afforded 
        certain rights that balance the interests of committees 
        in conducting oversight, including the right to 
        counsel, the right to a copy of the committee and House 
        rules, the right to petition to testify in executive 
        session, the right to submit statements for the record, 
        and the right to obtain a copy of their testimony;\36\
---------------------------------------------------------------------------
    \36\Id. cl. 2(k).
---------------------------------------------------------------------------
           committees are authorized to sit and act and 
        hold hearings within the United States regardless of 
        whether the House is in session, has recessed, or has 
        adjourned;\37\
---------------------------------------------------------------------------
    \37\Id. cl. 2(m)(1)(A).
---------------------------------------------------------------------------
           committees may require, by subpoena or 
        otherwise, the attendance and testimony of witnesses 
        and the production of books, records, correspondence, 
        memoranda, papers, and documents it deems 
        necessary.\38\
---------------------------------------------------------------------------
    \38\Id. cl. 2(m)(1)(B).
---------------------------------------------------------------------------
    Such tools, however, are not sufficient in all cases. In 
some investigations, such as that regarding the Crandall Canyon 
Mine, not all subjects or people with information related to 
the investigation will agree to voluntary interviews; such 
individuals often need to be compelled to cooperate. It should 
be noted that some witnesses may refuse to cooperate with 
voluntary interviews merely to hide information, while others 
fear retribution from employers if they do cooperate.
    In these circumstances, the power to compel witnesses to 
testify can be an invaluable investigative tool. The primary 
method of compulsion contemplated by the Rules of the House is 
a subpoena for a hearing. In the course of some investigations, 
however, the nature of witness testimony, while significant, 
might not justify the cost and effort of calling the witness to 
appear at a committee hearing. For this reason, the House has, 
on occasion, granted special powers to standing committees and 
special committees so that they may conduct Member and staff 
depositions of witnesses.
    With respect to standing committees, in the 104th Congress, 
the Committee on Rules reported and the House adopted a 
resolution providing special authorities to the Committee on 
Government Reform and Oversight to obtain testimony on the 
White House Travel Office matter.\39\ The special authorities 
included permitting the staff of the Government Reform 
Committee to take depositions.
---------------------------------------------------------------------------
    \39\H. Res. 369, 104th Cong. (1996).
---------------------------------------------------------------------------
    In the 105th Congress, the Committee on Rules and the House 
adopted two resolutions that authorized committee staffs to 
take depositions. First, House Resolution 167 provided special 
investigative authorities to the Committee on Government Reform 
and Oversight regarding political fundraising 
improprieties.\40\ Second, House Resolution 507 authorized the 
Committee on Education and Workforce to take staff depositions 
in its investigation of the administration of labor laws and 
the International Brotherhood of Teamsters.\41\
---------------------------------------------------------------------------
    \40\H. Res. 167, 105th Cong. (1997).
    \41\H. Res. 507, 105th Cong. (1998).
---------------------------------------------------------------------------
    Most recently, the standing rules of the House for the 
110th Congress authorize the Committee on Oversight and 
Government Reform (formerly known as the Committee on 
Government Reform and the Committee on Government Reform and 
Oversight) to take staff depositions for any investigation.\42\ 
The authority is not limited to specific investigations but 
instead is part of that committee's broad mandate to oversee 
and investigate the operation of the Federal government. These 
are just the four most recent examples in which the House has 
permitted the staffs of standing committees to take 
depositions.\43\
---------------------------------------------------------------------------
    \42\House Rule X cl. 4(c)(3).
    \43\As noted, the House also has passed resolutions that created 
special or select committees with staff deposition authority. For 
instance, in the 105th Congress, House Resolution 463 established a 
Select Committee on U.S. National Security and Military/Commercial 
Concerns with the People's Republic of China. H. Res. 463, 105th Cong. 
(1998).
---------------------------------------------------------------------------
    It is this type of deposition authority that is proposed in 
H. Res. 836 to be granted to the Education and Labor Committee. 
At the outset, it should be noted that the authority suggested 
in H. Res. 836 is limited to the events surrounding the deaths 
of the six miners and three rescuers at the Crandall Canyon 
Mine. It does not extend to accidents at any other mine. The 
Committee on Rules believes that vigorous oversight is 
necessary to learn the causes of this most recent tragedy so 
that solutions may be found to prevent future death and 
disability across the mining industry.\44\
---------------------------------------------------------------------------
    \44\In 2006, there were three serious mine accidents that killed 18 
miners. H.R. Rep. No. 110-457, 110th Cong., 1st Sess. 20 (2007). Those 
disasters led to the passage of the MINER Act. Id. Nevertheless, just a 
little over one year after enactment of the MINER Act, the country 
witnessed another mine disaster. In fact, mining fatalities continue to 
occur at a rate more than seven times the average for all private 
industries, exceeding other dangerous occupations such as construction 
and trucking. Id. at 31. According to the latest information provided 
by MSHA, 56 miners have died from January 1, 2007, through the end of 
October 2007. Id. While news reports this year and last have focused on 
multiple-fatality accidents involving coal miners, 26 of the 56 deaths 
so far this year have been in coal mines and 30 have been in non-coal 
(metal and nonmetal mines), most of which have been at surface mines. 
Id.
---------------------------------------------------------------------------
    Deposition authority would be useful to the Education and 
Labor Committee in two ways. As indicated previously, it would 
serve as a means of compelling the assistance of recalcitrant 
witnesses whose testimony might not rise to the level of 
committee hearing subjects. In other cases, the deposition 
authority will allow for subsequent questioning of deposed 
witnesses at a committee hearing to be more focused and 
illuminating. This is particularly important in the instant 
investigation, as the subject matter involves highly-technical 
scientific and engineering issues.
    The vehicle of a deposition also will allow Education and 
Labor Committee members and counsel to probe efficiently the 
scope and basis for any deponent's refusal to answer specific 
questions by the invocation of his or her Fifth Amendment right 
against self-incrimination. This example is not created out of 
whole cloth; at least one important witness has indicated that 
he would plead his Fifth Amendment right against self-
incrimination if called to a public hearing. Similarly, any 
other claims of privilege can be more fully and efficiently 
addressed in a deposition rather than at a public hearing.
    Finally, the deposition authority reflected in H. Res. 836 
contains significant protections for both members of the 
Education and Labor Committee and potential deposition 
witnesses. For example, any Education and Labor Committee rule 
promulgating the authority must ensure that the minority 
Members and staff of the committee are accorded equitable 
treatment with respect to notice of and a reasonable 
opportunity to participate in any proceedings thereunder. 
Further, deposition testimony will retain the character of 
discovery until offered for admission into evidence before the 
committee, at which time any proper objection will be timely.
    It also should be noted that the Education and Labor 
Committee has adopted a rule to implement H. Res. 836 in 
anticipation of the House adopting the resolution.\45\ The 
Committee rule, the text of which is attached as an appendix to 
this report, includes many provisions to clarify the rights of 
Members and witnesses. For instance, the Chairman or majority 
staff will be required to consult with the Ranking Minority 
Member or minority staff no less than three days before any 
notice or subpoena for a deposition is issued. Upon completion 
of such consultation, all Members of the Committee will receive 
written notice that a notice or subpoena for a deposition will 
be issued. At the deposition, a witness may be accompanied by 
counsel to advise of his or her rights. Counsel for the entity 
employing the deponent also may attend if the scope of the 
deposition is expected to cover actions taken as part of the 
deponent's employment.
---------------------------------------------------------------------------
    \45\This is similar to the four previous circumstances when 
standing committees were given deposition authority. The committees 
promulgated their own rules governing the specific exercise of the 
deposition power granted by the House resolutions and rules. H.R. Rep. 
No. 105-658, at 17, 105th Cong., 2d Sess. (1998) (regarding staff 
deposition authority for the Committee on Education and Workforce); 
H.R. Rep. No. 105-139, at 33, 105th Cong., 1st Sess. (1997) (regarding 
staff deposition authority for the Committee on Government Reform and 
Oversight); 142 Cong. Rec. H1963 (daily ed. Mar. 7, 1996) (regarding 
staff deposition authority for the Committee on Government Reform and 
Oversight). In general, these committee rules have governed deposition 
notice requirements, the rights of witnesses and their counsel, the 
rights of committee members, the transcription of depositions, and the 
admission of deposition testimony into committee records.
---------------------------------------------------------------------------
    The counsel may instruct a deponent not to answer a 
question if needed to preserve a privilege. If a witness 
refuses to answer a question and objects, the Chairman may rule 
on such objection after the deposition has adjourned. If the 
Chairman overrules any objection and directs the witness to 
answer any questions to which privilege objections were lodged, 
such ruling must be filed with the clerk of the Committee and 
provided to the Committee Members and the deponent no less than 
three days before it is implemented. If a Committee Member 
appeals in writing the ruling of the Chairman, then the appeal 
shall be preserved for Committee consideration.
    Any depositions will have to be transcribed 
stenographically and also may be electronically recorded. 
Majority and minority staff shall receive copies of the 
deposition transcript at the same time. The electronic 
recording, however, shall not supersede the certified written 
transcript.
    After receiving the initial transcript, Majority staff 
shall make it available to the deponent or deponent's counsel. 
No later than ten business days thereafter, the deponent may 
suggest any technical or substantive changes. Any substantive 
changes, however, must be suggested by the deponent in writing 
to the Committee and will be included as an appendix to the 
transcript. Majority and minority staff shall be provided with 
a copy of the final transcript at the same time.
    The Chairman and Ranking Minority Member of the Education 
and Labor Committee shall consult regarding the release of 
deposition transcripts or any electronic recordings. If either 
objects in writing to a proposed release of a deposition 
transcript or recording, the matter shall be referred to the 
Education and Labor Committee for prompt resolution.
    In short, the grant of staff deposition authority is an 
invaluable and not unprecedented power for congressional 
committees to exercise their obligations to conduct oversight 
and to legislate. House Resolution 836 proposes to grant to the 
Education and Labor Committee such authority as part of its 
investigation into the deaths of several individuals at the 
Crandall Canyon Mine this past August.

             SECTION-BY-SECTION ANALYSIS OF THE RESOLUTION

    Section 1 extends the investigative authority granted to 
the Committee on Oversight and Government Reform under clause 
4(c)(3) of rule X of the Rules of the House of Representatives 
to the Committee on Education and Labor for purposes of its 
investigation into the deaths of nine individuals that occurred 
at the Crandall Canyon Mine near Huntington, Utah, including 
the events that may have led to those deaths and into the 
administration of relevant laws by government agencies, 
including the Department of Labor and the Mine Safety and 
Health Administration, and into other related matters.
    Clause 4(c)(3) of rule X of the Rules of the House of 
Representatives, as applied to the Education and Labor 
Committee by H. Res. 836, would allow the Education and Labor 
Committee to adopt a rule authorizing and regulating the taking 
of depositions by a member or counsel to the committee, 
including by issuing a subpoena. Rule X further states that a 
committee rule may provide that a deponent be directed to 
subscribe to an oath or affirmation before a person authorized 
by law to administer oaths and affirmations. A committee rule 
shall ensure that the members and staff of the committee are 
accorded equitable treatment with respect to notice of and a 
reasonable opportunity to participate in any proceedings 
thereunder. Finally, rule X provides that deposition testimony 
retain the character of discovery until offered for admission 
into evidence before the committee, at which time any proper 
objection will be timely.

                        COMMITTEE CONSIDERATION

    H. Res. 836 was introduced by Education and Labor Committee 
Chairman George Miller on December 4, 2007, and referred to the 
Committee on Rules. On December 5, 2007, the Committee on Rules 
held a hearing on H. Res. 836 and received testimony from: the 
Honorable George Miller, Chairman of the Committee on Education 
and Labor; the Honorable Howard ``Buck'' McKeon, Ranking 
Minority Member of the Committee on Education and Labor; and 
T.J. Halstead, Legislative Attorney, American Law Division, 
Congressional Research Service.
    On December 5, 2007, the Committee on Rules met on H. Res. 
836 in open session and ordered the resolution favorably 
reported to the House by a voice vote.

                             ROLLCALL VOTES

    No record votes were taken during consideration of H. Res. 
836.

                    COMPLIANCE WITH HOUSE RULE XIII

Statement of oversight findings and recommendations of the Committee

    In accordance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

Congressional Budget Office cost estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee states, with 
respect to H. Res. 836, that the Director of the Congressional 
Budget Office did not submit a cost estimate and comparison 
under section 402 of the Congressional Budget Act of 1974.

Statement of general performance goals and objectives

    In accordance with clause 3(c) of rule XIII of the Rules of 
the House of Representatives, the goal of H. Res. 836 is to 
authorize tools necessary for the Committee on Education and 
Labor to conduct a full investigation into the deaths of nine 
individuals that occurred at the Crandall Canyon Mine near 
Huntington, Utah, including the events that may have led to 
those deaths and into the administration of relevant laws by 
government agencies, including the U.S. Department of Labor and 
the U.S. Mine Safety and Health Administration, and into other 
related matters.

                             MINORITY VIEWS

    First, we wish to express our deeply felt distress about 
the loss of life which occurred at the Crandall Canyon Mine in 
August of this year. Those events are currently the subject of 
investigations by both Federal and State officials, as well as 
three separate congressional investigations. Congress has a 
legitimate need to perform oversight in this matter. We are not 
writing these views to object to the investigation itself.
    We are writing these views to express our grave concerns 
about the new Majority's apparent desire to substitute 
extraordinary actions for the ordinary course of business. The 
authority for Members--or even staff--to conduct depositions 
with the potential for criminal jeopardy for the subjects of 
those depositions is an immense power which should only be 
exercised in the rarest of instances. Unfortunately, the 
current Majority has tossed away its earlier concerns about the 
judicious use of deposition authority, and instead made it a 
standard part of its legislative tool kit.
    The history of deposition authority was succinctly 
summarized in the Minority Views to accompany H. Res. 167 in 
the 105th Congress, which provided deposition authority to the 
Committee on Government Reform in its investigation of certain 
campaign fund raising irregularities. In views signed by the 
current Chair of the Committee on Rules, the then-Minority 
explained that:

          Prior to the 104th Congress, only the Committee on 
        Standards of Official Conduct for ethics matters and 
        the Judiciary Committee for impeachment proceedings 
        were given this special type of subpoena power for 
        deposing of witnesses. No other standing committees 
        were granted this extraordinary power. (H. Rept. 105-
        139, p. 20.)

    Yet, in the 110th Congress, deposition authority appears to 
be available just for the asking. For instance, in the opening 
day rules package, the Committee on Oversight and Government 
Reform was granted carte blanche authority to conduct 
depositions, without regard to subject matter. (Rule X, cl. 
4(c)(3)) This rule was adopted without the benefit of any 
hearings, and tucked into a wide-ranging rules package so as to 
stifle any opportunity for meaningful debate or amendment. 
Further, it was adopted without any sort of assurance as to the 
committee rule to be adopted by the Committee on Oversight and 
Government Reform. The House had no assurances that the 
chairman of that committee would respect the rights of the 
subjects of those depositions or the Minority.
    This is exactly the broad grant of authority which caused 
the Chairwoman such consternation in the 105th Congress. The 
rule adopted at the beginning of this Congress is rife with the 
potential for abuse, and leaves the rights of witnesses and the 
Minority subject to the whims of a committee chair.
    Thankfully, the authority granted by H. Res. 836 to the 
Committee on Education and Labor is far more circumspect in its 
scope. The authority will expire at the end of the Congress, 
effectively limiting it to a year. Further, the authority is 
limited to that committee's inquiry into the 9 deaths, the 
events leading up to that disaster, and the relevant agencies' 
response. Those questions are worthy of congressional 
examination, and we support that effort.
    Further, the committee rule adopted by the Committee on 
Education and Labor is fair in its treatment of the minority 
party. It provides for:
           Consultation between the Chair and Ranking 
        Republican Member and provides 3-day notice to all of 
        the Members of the Committee prior to invoking the 
        deposition authority;
           A limitation on the conduct of depositions 
        to Members or Committee counsel;
           Limitations on who may be in attendance at a 
        deposition;
           Equal treatment of the Minority in the 
        conduct of questioning;
           A reasonably fair mechanism for handling 
        objections; and,
           Requirements that the release of deposition 
        transcripts only occur with the concurrence of the 
        Chair and Ranking Republican Member, or by vote of the 
        Committee.
    In fact, we believe that this committee rule should 
immediately be adopted by the Committee on Oversight and 
Government Reform, and should serve as a model for future 
implementations of deposition authority.
    While we are satisfied with the relatively narrow scope of 
the authority and its implementation by the Committee, we still 
have questions as to why the Committee on Education and Labor 
is seeking this authority now. As the Ranking Republican Member 
of the Committee on Education and Labor (Mr. McKeon) testified 
before this committee:

          Our role in this collage of investigations is to 
        conduct robust oversight. To that end, the Committee 
        has requested--and the Department of Labor has 
        produced--hundreds of thousands of pages of documents 
        related to this mine and its collapse. And more 
        documents are on the way. We also have significant 
        tools at our disposal, even without this new and 
        extraordinary authority, to hold hearings, interview 
        witnesses and officials, insert findings into the 
        official record, and compel the disclosure of 
        documents. We have not come close to exhausting the 
        resources at our disposal to investigate this incident.
          Not only is the deposition authority premature at 
        this juncture, it also appears to be unnecessary. 
        Although the majority staff has refused to discuss who 
        they intend to depose, we have been told that only 
        ``four or five'' witnesses would need to be subpoenaed. 
        I see no reason why the regular hearing process could 
        not accommodate that small number of witnesses.

    We understand that Mr. McKeon has indicated that he would 
ensure that the Republican Members of the Committee were 
available to receive testimony from subpoenaed witnesses at 
hearings and would otherwise facilitate the Committee's 
investigation. Given those assurances and the broad authority 
already available to the Committee on Education and Labor 
through clause 2 of rule XI and its own committee rules, we are 
frankly confused as to why this authority is necessary.
    We must also express our reservations about the potential 
to exercise this authority in a way which may interfere with 
the Department of Labor's own ongoing law enforcement 
investigation. In September, the Acting Solicitor of the 
Department of Labor wrote to Chairman Miller expressing his 
concern that his committee's ``parallel investigation * * * may 
compromise the integrity of MSHA's law enforcement 
investigation and potentially jeopardize its ability to enforce 
the law and hold violators accountable.'' While the Committee 
on Education and Labor refrained from interfering in that 
investigation during the month of September, we are concerned 
that this resolution indicates a desire on the part of the 
Majority to move forward with their own inquiry, regardless of 
the potential to disrupt efforts to bring wrong-doers to 
justice. Congress needs to conduct oversight to ensure that the 
laws are properly executed, but the Constitution demands that 
Congress leave the enforcement of those laws to the Executive 
Branch. We are concerned that this resolution could have the 
effect of blurring those lines.
    However, despite these reservations, we will not oppose the 
resolution. We continue to believe that the Majority is too 
quick to resort to tools normally reserved for the impeachment 
of Presidents and the protection of the Nation's security, but 
given the narrow scope of the inquiry and the fairness of the 
committee rule, we will not object to the grant of this 
authority at this time. However, should the Majority continue 
on its path of making deposition authority routine, we will not 
be as accommodating in the future.

                                   David Dreier.
                                   Lincoln Diaz-Balart.
                                   Doc Hastings.
                                   Pete Sessions.

                                APPENDIX

    Text of Education and Labor Committee rule adopted on 
December 5, 2007:

                     Rule 24. Deposition Authority

    In accordance with the Committee receiving special 
authorization by the House for the taking of depositions in 
furtherance of a Committee investigation, the Chairman, upon 
consultation with the ranking minority member, may order the 
taking of depositions pursuant to notice or subpoena.
    The Chairman or majority staff shall consult with the 
ranking minority member or minority staff no less than three 
business days before any notice or subpoena for a deposition is 
issued. Upon completion of such consultation, all members shall 
receive written notice that a notice or subpoena for a 
deposition will be issued.
    A notice or subpoena issued for the taking of a deposition 
shall specify the date, time, and place of the deposition and 
the method or methods by which the deposition will be recorded.
    A deposition shall be conducted by one or more members or 
Committee counsel as designated by the Chairman or ranking 
minority member.
    A deposition shall be taken under oath or affirmation 
administered by a member or a person otherwise authorized to 
administer oaths and affirmations.
    A deponent may be accompanied at a deposition by counsel to 
advise the deponent of the deponent's rights. Only members and 
Committee counsel, however, may examine the deponent. No one 
may be present at a deposition other than members, Committee 
staff designated by the Chairman or ranking minority member, 
such individuals as may be required to administer the oath or 
affirmation and transcribe or record the proceedings, the 
deponent, and the deponent's counsel (including personal 
counsel and counsel for the entity employing the deponent if 
the scope of the deposition is expected to cover actions taken 
as part of the deponent's employment). Observers or counsel for 
other persons or entities may not attend.
    Questions in a deposition shall be propounded in rounds, 
alternating between the majority and minority. A single round 
shall not exceed 60 minutes per side, unless the members or 
counsel conducting the deposition agree to a different length 
of questioning. In each round, a member or Committee counsel 
designated by the Chairman shall ask questions first, and the 
member or Committee counsel designated by the ranking minority 
member shall ask questions second.
    Any objection made during a deposition must be stated 
concisely and in a non-argumentative and non-suggestive manner. 
Counsel may instruct a deponent not to answer only when 
necessary to preserve a privilege. In instances where the 
deponent or counsel has objected to a question to preserve a 
privilege and accordingly the deponent has refused to answer 
the question to preserve such privilege, the Chairman may rule 
on any such objection after the deposition has adjourned. If 
the Chairman overrules any such objection and thereby orders a 
deponent to answer any question to which a privilege objection 
was lodged, such ruling shall be filed with the clerk of the 
Committee and shall be provided to members and the deponent no 
less than three days before the ruling is implemented. If a 
member of the Committee appeals in writing the ruling of the 
Chairman, the appeal shall be preserved for Committee 
consideration. A deponent who refuses to answer a question 
after being directed to answer by the Chairman in writing may 
be subject to sanction, except that no sanctions may be imposed 
if the ruling of the Chairman is reversed on appeal. In all 
cases, when deposition testimony for which an objection has 
been made is offered for admission in evidence before the 
Committee, all properly lodged objections shall be timely and 
shall be considered by the Committee at that time.
    Deposition testimony shall be transcribed by stenographic 
means and may also be video recorded. The Clerk of the 
Committee shall receive the transcript and any video recording 
and promptly forward such to minority staff at the same time 
the Clerk distributes such to other majority staff.
    The individual administering the oath, if other than a 
member, shall certify on the transcript that the deponent was 
duly sworn. The transcriber shall certify that the transcript 
is a true, verbatim record of the testimony, and the transcript 
and any exhibits shall be filed, as shall any video recording, 
with the clerk of the Committee in Washington, DC. In no case 
shall any video recording be considered the official transcript 
of a deposition or otherwise supersede the certified written 
transcript. Depositions shall be considered to have been taken 
in Washington, DC, as well as the location actually taken, once 
filed with the clerk of the Committee for the Committee's use.
    After receiving the transcript, majority staff shall make 
available the transcript for review by the deponent or 
deponent's counsel. No later than ten business days thereafter, 
the deponent may submit suggested changes to the Chairman. 
Committee majority staff may direct the Clerk of the Committee 
to note any typographical errors, including any requested by 
the deponent or minority staff, via an errata sheet appended to 
the transcript. Any proposed substantive changes, 
modifications, clarifications, or amendments to the deposition 
testimony must be submitted by the deponent as an affidavit 
that includes the deponent's reasons therefore. Any substantive 
changes, modifications, clarifications, or amendments shall be 
included as an appendix to the transcript. Majority and 
minority staff both shall be provided with a copy of the final 
transcript of the deposition with any appendices at the same 
time.
    The Chairman and ranking minority member shall consult 
regarding the release of deposition transcript or electronic 
recordings. If either objects in writing to a proposed release 
of a deposition transcript or electronic recording or a portion 
thereof, the matter shall be promptly referred to the Committee 
for resolution.
    A deponent shall not be required to testify unless the 
deponent has been provided with a copy of the Committee's 
rules, the House Resolution authorizing the taking of the 
deposition, and rule X of the Rules of the House of 
Representatives.

                                  
