treated as a felony under the act instead of a misdeern. >> i believe the judge expressed his frustration where he believed tougher action was needed. i think it's pretty straight forward. i think the u.s. attorney's office expressed similar concerns of what they believe that their limitations to bring forward other actions. i think it's a classic case that you have to step back and take a look to determine whether or not there is sufficient pulls to deal with circumstances like that. i'll just point back to some of the things that we're still finding through some of our

impact inspections. there's kind of conduct that's ongoing and doesn't seem there's enough to turn to prevent that from happening. in six different cases managers should have been investigated for willfully violating safety laws. high weren't these cases investigated and are those being investigated now? >> there's about three reasons to answer the question why weren't they. these cuts also affected special

investigations. if if you look at the testimony, there's a whole chart. there's a real resource problem of what the inspectors could do. the other problem that was raced in the internal review is around 2006, i believe it was, they're only able to carry out about 83% of its responsibilities. they were pulling special investigators and others to keep the program up because they were so short staffed and couldn't keep up. >> with that in mind, do you agree with niosh their independent panel recommendation to conduct four complete inspections each year at underground mines as a way to prioritize resources?

would that help? >> to finish off the last question, all those cases are shifted off to the u.s. attorney office. to answer the kwekd question, i went to work before there was a minac in this country. i remember the first time a fellow inspector showed up at the mine. it was a game changer. i can tell you from my own personal experience that the two informed mandatory inspection program has saved more miner's lives than probably any other single thing. it's like taking to do -- to strip that away is like taking two brakes off of a car because we don't have as many car wrecks now. this is a fundamental piece of

the 1969 mine act. miners were given the most fum protection they have. >> the gentle lady's tame has expired. >> thank you mr. chairman. we appreciate you taking the opportunity to answer your questions. i have a few questions about the inspectors' work especially about the days and hours that they work especially on weekends. for the past five weekends one of our nation's miners has died in a mine including last friday night at the shoal creek mine in my home state of alabama. none of the inspections occurred on a saturday. and the internal review also

found and i quote inspectors were contractually required to begin their workweek no later than tuesday, which quote limited the opportunities for inspecting on fridays and saturdays. so if i understand this correctly, does that mean that there were no inspections on sundays and is this issue of having infrequent friday and weekend inspections widespread? >> i think to answer the question, was there any on sundays? you may be correct. there may not have been. i'll tell you what we've done. we've made a lot of changes since the upper big branch tragedy. we're going to do a better job at the problem mines. if you look at the impact inspections a lot of those are done on offshifts when they're least expecting them to show up.

so that's a packet that we're using more ready now. the agencies have had to shift their personnel to address that, but they are. you're right about the past five weekends. you start wondering are we so much now on the weekends shifting some of the activity to a time they still don't think we're going to show up. i don't know. three of those i believe they were foremen that died in these weekend deaths. we put out an alert to the mining industry to get them to focus on that as well. the short answer is we have changed the way we do business. we are focused more time on the offshifts. we're plowing through the data and human information to figure out which mines we need to be at more often and at times when they least expect us to be

there. i think folks can realize there's probably more weekend inspections at mines across the country. >> that's good to hear. i understand you were involved many the jim walters mine investigation in alabama. >> yes. >> and during that investigation it was discovered that the mine operator essentially kept two set of books. >> there's a problem that dates back that far. >> right. i understand that the investigation of upper big branch also showed that massey was keeping two sets of books by illegally recording hazards in the coal production reports. so the question is given your experience at jim walters mine in alabama what are you doing and what will you be doing to ensure that mine operators are recording hazards in the official book rather than the quote two sets of books? >> i would say this, i had been assistant secretary in 2001 we

would have taking more aggressive after that not to be talking about this in 2010. having said that, there's a number of things that we are doing and things that we are asking congress to take a look at. we have pretty well made this clear to our staff about what's going on. there is absolutely no problem for an operator to keep a set of books that lists hazards as long as they put them in the required books. that's one thing we're going to make clear, what we're finding at upper big branch is they were listing hazards in their production books. they weren't in their routine books. this is conduct that you have to get into the books to find. this is conduct that we don't have the powers to do subpoenas to go in and demand those kind of records. just something to think about. our inspectors are alert to the fact this is a problem. we need to be doing a much better job of looking at the

kpajs books. that was a figure that we found at upper big branch that the inspectors were not as focused on what was in the books the way they should have been. >> i thank the gentle lady. mr. edwards. >> thank you for calling this hearing and the seriousness which i think all the members are approaching it. i think for 29 of our fellow citizens we've all engaged in an inaccusable failure. i would start with us. we've failed to give prosecutors the tools to convict people of serious offenses and have sufficient punishment when they do.

i think it's jut rajs that these prosecutions were not felonies. we need to fix that. we have a potentiality for not giving all the tools and resources and personnel that is needed overtime. i think it's our responsibility to fix that. mr. main, i know the record is still being developed. i think a fair statement is some of the inspectorstch things tha be written off for lack of experience or lack of personnel. they just didn't do their jobs very well. i think there should be some consequences in those cases. and certainly at the root of this problem is deplorable, criminal behavior by a mine operator. i know there's vigorous prosecutions goingspea on

obviously our focus should be on finding out what happened in this senseless loss of 29 lives. but our focus also ought to be on preventing something like this from happening again. one of the thins i'm confident that you're doing is how you train and supervisor and manage the people that work for you. i'll leave that to your discretion. i do want to take a look of whether you run this agency with the personnel that it should. there is mentioning in 2001 we had spent $122 million to run your agency. by 2006 it was down to $117 million. not convincely, what happened during that period of time, it looks as if many of your

experienced inspectors which is respected by that red line there, the declining line, the number of inspectors the average experience dropped precipitously. about 12 years of experience to about five. why were experienced people leaving the agency during that time. >> i can't speak for the motives of the folks why they left. there were a lot of people that were retirement eligible.

that's something you have to ask them. a couple other items that you raise, too. could we have done better? there's no question about that. we're not taking the same approach from the past internal reviews, if we do the same thing the last folks did, we're going to compound the problem. i don't believe that simply spending more money on this works. but spending less may exacerbate the problem. if you prorate these for 2014, you'd have 19% less than you have to operate on right now. what impact would that have on

your ability to protect these miners? take a look at the report and see what they have what the last impact of that was. i think you could pretty well predict the future. if you expect to have an effective, enforcement agency, you've got to pay for it. i think it's that simple. i think that in terms of the lesson that's been learned from upper big branch is if we could all go back and redo history through 2001, through 2006 we would probably all agree to do that. >> thank you. >> to start with just to offer my sympathy to the families. obviously the 29 plus friends, acquaintances and so forth of this horrible tragedy. it seems to me it was a perfect

storm. an unscrupulous company who wasn't following the rules and the inspectors. it was a perfect storm to have this tragedy happen. i agree that the inspectors didn't cause the explosion. in reference to mr. andrews' chart, the chart does not show the experience that the folks are required to have before they come to work. your agency received significant fundsing increases over the last six years. funding levels increased from $117 million in fiscal year 2006 to $165 million in fiscal year 2012. a 41% increase over six years. in 2010, the late robert byrd,

senator from west virginia said of this disaster, i am perplexed as to how such a tragedy on such a scale could happen given the significant increases in funding and manpower for the msha that have been provided by this sub committee. senator byrd went on to say i don't believe it was because of lack of funding. i don't believe that msha lacked enforcement authorities. i don't believe that. that objection i would like to include senator byrd's opening statement from a senate hearing held on may 20th to this records hearing. >> without objection. >> i thank the chairman. mr. main, your agency did receive increased funding every year for the last six years, did it not? >> you have to put this thing in context. the agency was at its lowest

point in 2006. that's when congress made the decision to add more resources. those resources by the time it went through the process to where the agency could start hiring up was in mid 2007. mid 2007 as the agency started to hire, the amount of time it took for those inspectors to go through the training process was about 18 months to two years. keep in mind, you still have people retiring that was coming out of the system as well. >> let me interrupt you just a second. as a physician we have young doctors that come out that are fully trained. when they're fully trained they're expected to do the same job that a senior physician like i would do. i don't think that's an excuse. when you're trained up to do is job. we can't use that as an excuse when someone does a cancer

operation, you're either qualified to do it or you're not. >> i do look for the older doctor myself, but that's okay. the second question -- i might do the same. do you agree or disagree with the statements made by senator byrd less than two years ago about this very tragedy and the actions of your agent. if you disagree, why? >> i think what the senator and probably a lot of folks were of that belief until folks really had a chance unfortunately the senator didn't live long enough to see this all the way through. but to see how much the agency was shorted and how long it took for the money they put back in to have a real effect. at the time of the upper big branch tragedy of the lead inspectors that was at upper big branch, i think five out of six of them was hired in this latest class of 2006 forward. if you look back at 2007 and

look at the makeup of district four and the agency, 33% of district four in the agency were trainees. >> let me ask one question. my time's almost expired. with a agregregious findings could y have shut the mine down? >> on 48 occasions msha went in that mine in 2009 and shut them down using the full measure of the law they had and the authority under the law which says once you correct a problem, you can put it back to work. and the mine did that. there is no silver bullet. we've asked congress to consider that. we've tried to come up with ways to what a holistic way to deal with the mine that's seen an immediate danger. we used that at the freedom mine in 2010. it took us three months to get there. >> it didn't shut down and a disaster occurred.

that is a fact. >> the gentleman's time has expired. >> thank you very much, mr. chairman. thank you mr. secretary for being here today. this may seem a little repeptive, but i want to be clear. the first question is, if you look at msha's fy 13 congressional budget justification, it provides that msha is vigorously pursuing procedures to ensure miners are aware of their rights to report hazards without fear of discrimination, can you tell me what you were doing in that regard, specifically? >> i'm sorry. i missed the last part of your question. >> it indicates you are pursuing policies and procedures to ensure miners are aware of their rights to report hazards without fear of discrimination. what are you doing in that regard? >> there's a number of things. particularly in upper big

branch. we've developed a lot of new training programs. getting more information to the miners. more information to miners about their rights which are coen forcement program do as they reach the miners at the mine. we have beefed up our response to miners. we have an obligation to protect them. we beefed up protection particularly for those who are fired about speaking up about safety rights. we have increased the numb of cases that we take to the review. there's a lot of things that we're doing with regard to the miner voice issue. we think this is something that was part of the legislative processes that was discussed last year and contained some of the bills that we think is something that needs address.

>> i think that contributed to the problem. >> the last complaint we received from that mine was in 2006. four years prior to the explosion. that's a sign that we really need to figure out a better way to get miners a voice. >> do you believe that msha should have subpoena powers and do you think that had there been subpoena powers it could have changed the outcome of the upper big branch case? i can't -- i don't know if it would change the history back. i don't know how it would have been utilized.

this is something we supported. if you look at history, we had a number of witnesses that exercised the fifth amendment rights during the upper big branch tragedy. even to get to that spot where they could be subpoenaed we had to work with and utilize the west virginia subpoena power to get to that point. we don't have that. thank you very much. i would yield to the ranking member. >> absent the subpoena power and and absent some kind of whistle brother production. mr. main what you've described here is a continued cat and mouse game where people continue to warn mining companies and inspectors on the property after upper big branch and they continue to cook the books. so they con along because they're immunized against the downside of that because congress hasn't given you subpoena power and workers don't

have protection. so we're right back where we were before. all the internal reviews and the rest of that you're still citing people, you cited somebody 32 times you had to grab the phones on warning people that the government's on the property. and answering the question here, yes, the books continue -- two sets of books continue to be kept, but we can't get to them because we don't have the subpoena power. so as long as congress is going to insulate the mine owners from responsible and legal behavior, i can't care how many people we give you to staff up. you're going to be playing on the short end of the field. that's just not acceptable. you can't sit here and continue to lament the 29 deaths and the deaths that went before them and the deaths that are continuing to come and then suggest that somehow you've got to do this with the blindfold and one hand

behind your back. at the end of the day, that's what you're kriebing to us. >> i could tell you this with regard to the question that was asked about the two sets of books, we can go ask the mine operator to produce books that are not legally maintained under the mine act and they'll say no. what we do beyond that is what we're creative enough to do. we do not have the ability to demand it through subpoena poour. >> the time has expired. mr. kelly. >> thank you, mr. chairman. mr. secretary, thank you for being here. i don't think there's anybody on on the panel today that would question the desire to make sure that people are safe all the time. unfortunately change usually doesn't take place unless there's a tragedy or crisis. if i understand correctly, your inspectors have to have a knowledge under policies and procedures of 4,500 pages of

inspections, is that right? >> probably more than that. that's probably a fair number. so how would you change what you have now? listen, i understand about spending more money. but throwing money at a problem without having a definitive plan usually isn't a fix. that's just a waste of money. what would you do differently? >> what we are doing differently, here's the way i view life. i think what's happened, if you look at a number of the past tragedies, we're taken an inspection procedure and process that was pretty challenging for an inspector to do. as the theory i use we expect them to do a thousand things, they can do 750. after jim walters and darby and crandall canyon there was a number of policies flared on that. the internal review team came up with about 200 since 2004 that was layered on. what i said back in july of 2010, i'm not doing this.

i put together a crew to go back. we're rewriting the entire manuel from base zero. we're leaning out a lot of the controversy. we're making sure that all these internal reviews and accountability audits get placed in a clear and straight forward way so an inspector knows exactly what they're supposed to do and we can have a greater clarity. i asked our folks to go to the root of this. i can tell you that we are rewriting the entire inspection procedures to clean up. >> i understand. i've been through several mines back in the area that i represent. part of the problem is, and i don't know the experience of the people that you have going out inspecting. when people get cited for having a fluorescent light that's not the proper height above the desk or not having a cover on a trash

can or not having two sets of trucks under truck wheels, you start to wonder if it's really a loss provengs, a tragedy prevention. sometimes we get to the point where we're pricing too many things in the same level. if i'm understanding with upper big branch that there were 48 citations, i know you don't have subpoena power, i'm understanding that. what would your next choice would have been? i can't believe if we know something's wrong, if we know these people are bad aps and the people that work for them are hiding things from mine inspectors, i don't know how you clear that up? it comes down to -- certainly after 48 citations somebody would have been able to go to something and say we've got to shut these folks down? >> if you look at history of the mine act up until upper big

branch. the tool of choice for this agency was the 104 d orders. which allowed them to quickly go in -- this is a company that didn't pay their fines. fine them $1 million a day, by the way, one while running off of upper big branch in a shift produced about $700,000. it's a $2 million a day. this was a company that did not pay its fines. this is a company that challenged the law. >> that's my point. if you know this is going on and they have habitually do this, you have to go to somebody up the ladder and say we've got to stop this. this is a bad actor that we've got to take out. >> today we've instituted a number of tolls to target that. we're not there yet. the tools these impact inspections to deal with mine operators before they