[House Report 110-473]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-473
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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
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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\
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\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.
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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\
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\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.
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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\
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\7\Dennis Romboy & Pat Reavy, 3rd Bore Hole Being Drilled, Deseret
Morn. News, Aug. 15, 2007.
\8\Id.
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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\
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\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.
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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.
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\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.
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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\
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\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).
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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\
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\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).
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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.
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\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.
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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.
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\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).
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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\
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\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.
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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\
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\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).
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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\
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\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).
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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.
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\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).
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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:
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\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\
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\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:
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\34\Rules of the House of Representatives, Rule XI, 110th Cong.
(2007).
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committees may set a quorum of no less than
two members for taking testimony and receiving
evidence;\35\
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\35\House Rule XI cl. 2(h)(2).
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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\
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\36\Id. cl. 2(k).
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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\
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\37\Id. cl. 2(m)(1)(A).
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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\
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\38\Id. cl. 2(m)(1)(B).
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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.
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\39\H. Res. 369, 104th Cong. (1996).
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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\
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\40\H. Res. 167, 105th Cong. (1997).
\41\H. Res. 507, 105th Cong. (1998).
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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\
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\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).
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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\
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\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.
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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.
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\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.
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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.