[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1423 Reported in Senate (RS)]





                                                       Calendar No. 483

104th CONGRESS

  2d Session

                                S. 1423

                          [Report No. 104-308]

_______________________________________________________________________

                                 A BILL

    To amend the Occupational Safety and Health Act of 1970 to make 
      modifications to certain provisions, and for other purposes.

_______________________________________________________________________

                             June 28, 1996

                        Reported with amendments





                                                       Calendar No. 483
104th CONGRESS
  2d Session
                                S. 1423

                          [Report No. 104-308]

    To amend the Occupational Safety and Health Act of 1970 to make 
      modifications to certain provisions, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

            November 17 (legislative day, November 16), 1995

  Mr. Gregg (for himself, Mrs. Kassebaum, Mr. Nunn, Mr. Jeffords, Mr. 
 Gorton, Mrs. Hutchison, Mr. Cochran, Mr. Grassley, Mr. Faircloth, Mr. 
 Coats, Mr. Bond, Mr. Thomas, Mr. Helms, Mr. Mack, Mr. Smith, and Mr. 
Craig) introduced the following bill; which was read twice and referred 
             to the Committee on Labor and Human Resources

                             June 28, 1996

              Reported by Mrs. Kassebaum, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
    To amend the Occupational Safety and Health Act of 1970 to make 
      modifications to certain provisions, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCE.

    (a) Short Title.--This Act may be cited as the ``Occupational 
Safety and Health Reform and Reinvention Act''.
    (b) Reference.--Whenever in this Act an amendment or repeal is 
expressed in terms of an amendment to, or repeal of, a section or other 
provision, the reference shall be considered to be made to a section or 
other provision of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.).

SEC. 2. EMPLOYEE PARTICIPATION.

    Section 4 (29 U.S.C. 653) is amended by adding at the end the 
following new subsection:
    ``(c) In order to carry out the purpose of this Act to encourage 
employers and employees in their efforts to reduce the number of 
occupational safety and health hazards, an employee participation 
program--
            ``(1) in which employees participate;
            ``(2) which exists for the purpose, in whole or in part, of 
        dealing with employees concerning safe and healthful working 
        conditions; and
            ``(3) which does not have, claim, or seek authority to 
        negotiate or enter into collective bargaining agreements with 
        the employer or to amend existing collective bargaining 
        agreements between the employer and any labor organization,
shall not constitute a `labor organization' for purposes of section 
8(a)(2) of the National Labor Relations Act (29 U.S.C. 158(a)(2)) or a 
representative for purposes of sections 1 and 2 of the Railway Labor 
Act (45 U.S.C. 151 and 151a). Nothing in this section shall be 
construed to affect employer obligations under section 8(a)(5) of the 
National Labor Relations Act (29 U.S.C. 158(a)(5)) to deal with a 
certified or recognized employee representative with respect to health 
and safety matters to the extent otherwise required by law.''.

SEC. 3. INSPECTIONS.

    (a) Training and Authority of Secretary.--Section 8 (29 U.S.C. 657) 
is amended--
            (1) by redesignating subsection (g) as subsection (h); and
            (2) by adding after subsection (f) the following new 
        subsection:
    ``(g)(1) Except as provided in paragraph (2), the Secretary shall 
not conduct routine inspections of, or enforce any standard, rule, 
regulation, or order under this Act with respect to--
            ``(A) any person who is engaged in a farming operation that 
        does not maintain a temporary labor camp and that employs 10 or 
        fewer employees; or
            ``(B) any employer of not more than 10 employees if such 
        employer is included within a category of employers having an 
        occupational injury or a lost workday case rate (determined 
        under the Standard Industrial Classification Code for which 
        such data are published) that is less than the national average 
        rate as most recently published by the Secretary acting through 
        the Bureau of Labor Statistics under section 24.
    ``(2) In the case of persons who are not engaged in farming 
operations, paragraph (1) shall not be construed to prevent the 
Secretary from--
            ``(A) providing consultations, technical assistance, and 
        educational and training services and conducting surveys and 
        studies under this Act;
            ``(B) conducting inspections or investigations in response 
        to complaints of employees, issuing citations for violations of 
        this Act found during such inspections, and assessing a penalty 
        for violations that are not corrected within a reasonable 
        abatement period;
            ``(C) taking any action authorized by this Act with respect 
        to imminent dangers;
            ``(D) taking any action authorized by this Act with respect 
        to a report of an employment accident that is fatal to at least 
        one employee or that results in the hospitalization of at least 
        three employees, and taking any action pursuant to an 
        investigation conducted with respect to such report; and
            ``(E) taking any action authorized by this Act with respect 
        to complaints of discrimination against employees for 
        exercising their rights under this Act.''.
    (b) Inspections Based on Employee Complaints.--Section 8(f) (29 
U.S.C. 657(f)) is amended to read as follows:
    ``(f)(1)(A) An employee or representative of an employee who 
believes that a violation of a safety or health standard exists that 
threatens physical harm, or that an imminent danger exists, may request 
an inspection by providing notice of the violation or danger to the 
Secretary or an authorized representative of the Secretary.
    ``(B) Notice under subparagraph (A) shall be reduced to writing, 
shall set forth with reasonable particularity the grounds for the 
notice, and shall state whether the alleged violation or danger has 
been brought to the attention of the employer and if so, whether the 
employer has refused to take any action to correct the alleged 
violation or danger.
    ``(C)(i) The notice under subparagraph (A) shall be signed by the 
employees or representative of employees and a copy shall be provided 
to the employer or the agent of the employer not later than the time of 
arrival of an occupational safety and health agency inspector to 
conduct the inspection.
    ``(ii) Upon the request of the person providing the notice under 
subparagraph (A), the name of the person and the names of individual 
employees referred to in the notice shall not appear in the copy of the 
notice or on any record published, released, or made available pursuant 
to subsection (i)<DELETED>,-except that the Secretary may disclose this 
information during prehearing discovery in a contested case</DELETED>.
    <DELETED>``(D) The Secretary may only make an inspection under this 
section if such an inspection is requested by an employee or a 
representative of employees</DELETED>.
    ``<DELETED>(E)(i) </DELETED>(D)(i) If, upon receipt of the notice 
under subparagraph (A), the Secretary determines that there are 
reasonable grounds to believe the violation or danger exists, the 
Secretary may conduct a special inspection in accordance with this 
section as soon as practicable. Except as provided in clause (ii), the 
special inspection shall be conducted for the limited purpose of 
determining whether the violation or danger exists.
    ``(ii) During a special inspection described in clause (i), the 
Secretary may take appropriate actions with respect to health and 
safety violations that are not within the scope of the inspection and 
that are observed by the Secretary or an authorized representative of 
the Secretary during the inspection.
    ``(2) If the Secretary determines either before, or as a result of, 
an inspection that there are not reasonable grounds to believe a 
violation or danger exists, the Secretary shall notify the complaining 
employee or employee representative of the determination and, upon 
request by the employee or employee representative, shall provide a 
written statement of the reasons for the Secretary's final disposition 
of the case.
    ``(3) The Secretary or an authorized representative of the 
Secretary may, as a method of investigating an alleged violation or 
danger under this section, attempt, if feasible, to contact an employer 
by telephone, facsimile, or other appropriate methods to determine 
whether--
            ``(A) the employer has taken corrective actions with 
        respect to the alleged violation or danger; or
            ``(B) there are reasonable grounds to believe that a hazard 
        exists.
    ``(4) The Secretary is not required to conduct a special inspection 
under this subsection if the Secretary determines that a request for a 
special inspection was made for reasons other than the safety and 
health of the employees of an employer or that the employees of an 
employer are not at risk.''.

SEC. 4. WORKSITE-BASED INITIATIVES.

    (a) Program.--The Act (29 U.S.C. 651 et seq.) is amended by 
inserting after section 8 the following new section:

``SEC. 8A. HEALTH AND SAFETY REINVENTION INITIATIVES.

    ``(a) In General.--The Secretary shall establish a program to 
encourage voluntary employer and employee efforts to provide safe and 
healthful working conditions.
    ``(b) Exemption.--In establishing a program under subsection (a), 
the Secretary shall, in accordance with subsection (c), provide an 
exemption from all safety and health inspections and investigations for 
a place of employment maintained by an employer participating in such 
program, except that this subsection shall not apply to inspections and 
investigations conducted for the purpose of--
            ``(1) determining the cause of a workplace accident that 
        resulted in the death of one or more employees or the 
        hospitalization of three or more employees; or
            ``(2) responding to a request for an inspection pursuant to 
        section 8(f)(1).
    ``(c) Exemption Requirements.--To qualify for an exemption under 
subsection (b), an employer shall provide to the Secretary evidence 
that, with respect to the employer--
            ``(1) during the preceding year, the place of employment or 
        conditions of employment have been reviewed or inspected 
        under--
                    ``(A) a consultation program provided by recipients 
                of grants under section 7(c)(1) or 23(g);
                    ``(B) a certification or consultation program 
                provided by an insurance carrier or other private 
                business entity pursuant to a State program, law, or 
                regulation (if the person conducting the review or 
                inspection meets standards established by, and is 
                certified by, the Secretary); or
                    ``(C) a workplace consultation program provided by 
                a qualified person certified by the Secretary for 
                purposes of providing such consultations,
        that includes a means of ensuring that serious hazards 
        identified in the consultation are corrected within an 
        appropriate time and that, where applicable, permits an 
        employee (of the employer) who is a representative of a health 
        and safety employee participation program to accompany a 
        consultant during a workplace inspection; or
            ``(2) the place of employment has an exemplary safety and 
        health record and the employer maintains a safety and health 
        program for the workplace that includes--
                    ``(A) procedures for assessing hazards to the 
                employer's employees that are inherent to the 
                employer's operations or business;
                    ``(B) procedures for correcting or controlling such 
                hazards in a timely manner based upon the severity of 
                the hazard; and
                    ``(C) an employee participation program that, at a 
                minimum--
                            ``(i) includes regular consultation between 
                        the employer and nonsupervisory employees 
                        regarding safety and health issues;
                            ``(ii) includes the opportunity for 
                        nonsupervisory employees to make 
                        recommendations regarding hazards in the 
                        workplace and to receive responses or 
to implement improvements in response to such recommendations; and
                            ``(iii) ensures that participating 
                        nonsupervisory employees have training or 
                        expertise on safety and health issues 
                        consistent with the responsibilities of such 
                        employees.
    ``(d) Model Program.--The Secretary shall publish and make 
available to employers a model safety and health program that if 
completed by the employer shall be considered to meet the requirements 
for an exemption under this section.
    ``(e) Certification.--The Secretary may require that, to claim the 
exemption under subsection (b), an employer provide certification to 
the Secretary and notice to the employer's employees of such 
eligibility. The Secretary may conduct random audits of the records of 
employers to ensure against falsification of the records by the 
employers.
    ``(f) Records.--Records of a safety and health inspection, audit, 
or review that is conducted by an employer and that is not conducted 
under a program described in subsection (a) shall not be required to be 
disclosed to the Secretary unless--
            ``(1) the Secretary is conducting an investigation 
        involving a fatality or a serious injury of an employee of such 
        employer; or
            ``(2) such employer has not taken measures to address 
        serious hazards in the workplace of the employer identified 
        during such inspection, audit, or review.''.
    (b) Definition.--Section 3 (29 U.S.C. 652) is amended by adding at 
the end the following new paragraph:
            ``(15) The term `exemplary safety and health record' means 
        such record as the Secretary shall annually determine for each 
        industry. Such record shall include employers that have had, in 
        the most recent reporting period, no employee death caused by 
        occupational injury and fewer lost workdays due to occupational 
        injury and illness than the average for the industry of which 
        the employer is a part.''.

SEC. 5. EMPLOYER DEFENSES.

    Section 9 (29 U.S.C. 658) is amended by adding at the end the 
following new subsections:
    ``(d) No citation may be issued under subsection (a) to an employer 
unless the employer knew, or with the exercise of reasonable diligence 
would have known, of the presence of the alleged violation. No citation 
shall be issued under subsection (a) to an employer for an alleged 
violation of section 5, any standard, rule, or order promulgated 
pursuant to section 6, any other regulation promulgated under this Act, 
or any other occupational safety and health standard, if such employer 
demonstrates that--
            ``(1) employees of such employer have been provided with 
        the proper training and equipment to prevent such a violation;
            ``(2) work rules designed to prevent such a violation have 
        been established and adequately communicated to employees by 
        such employer and the employer has taken reasonable measures to 
        discipline employees when violations of such work rules have 
        been discovered;
            ``(3) the failure of employees to observe work rules led to 
        the violation; and
            ``(4) reasonable steps have been taken by such employer to 
        discover any such violation.
    ``(e) A citation issued under subsection (a) to an employer who 
violates the requirements of section 5, of any standard, rule, or order 
promulgated pursuant to section 6, or any other regulation promulgated 
under this Act shall be vacated if such employer demonstrates that 
employees of such employer were protected by alternative methods 
equally or more protective of the employee's safety and health than 
those required by such standard, rule, order, or regulation in the 
factual circumstances underlying the citation.
    ``(f) Subsections (d) and (e) shall not be construed to eliminate 
or modify other defenses that may exist to any citation.''.

SEC. 6. INSPECTION QUOTAS.

    Section 9 (29 U.S.C. 658), as amended by section 5, is further 
amended by adding at the end thereof the following new subsection:
    ``(g) The Secretary shall not establish any quota for any 
subordinate within the Occupational Safety and Health Administration 
(including any regional director, area director, supervisor, or 
inspector) with respect to the number of inspections conducted, 
citations issued, or penalties collected.''.

SEC. 7. WARNINGS IN LIEU OF CITATIONS.

    Subsection (a) of section 9 (29 U.S.C. 658(a)) is amended to read 
as follows:
    ``(a)(1) Except as provided in paragraph (2), if, upon inspection 
or investigation, the Secretary or an authorized representative of the 
Secretary believes that an employer has violated a requirement of 
section 5, of any regulation, rule, or order promulgated pursuant to 
section 6, or of any regulations prescribed pursuant to this Act, the 
Secretary may with reasonable promptness issue a citation to the 
employer. Each citation shall be in writing and shall describe with 
particularity the nature of the violation, including a reference to the 
provision of the Act, regulation, rule, or order alleged to have been 
violated. The citation shall fix a reasonable time for the abatement of 
the violation.
    ``(2) The Secretary or the authorized representative of the 
Secretary--
            ``(A) may issue a warning in lieu of a citation with 
        respect to a violation that has no significant relationship to 
        employee safety or health and
            ``(B) may issue a warning in lieu of a citation in cases in 
        which an employer in good faith acts promptly to abate a 
        violation if the violation is not a willful or <DELETED>repeat 
        </DELETED>repeated violation.
    ``(3) Nothing in this Act shall be construed as prohibiting the 
Secretary or the authorized representative of the Secretary from 
providing technical or compliance assistance to an employer in 
correcting a violation discovered during an inspection or investigation 
under this Act without issuing a citation.''.

SEC. 8. REDUCED PENALTIES FOR NONSERIOUS VIOLATIONS AND MITIGATING 
              CIRCUMSTANCES.

    Section 17 (29 U.S.C. 666) is amended--
            (1) in subsection (c), by striking ``up to $7,000'' and 
        inserting ``not more than $100'';
            (2) in subsection (i), to read as follows:
    ``(i) Any employer who violates any of the posting or paperwork 
requirements other than serious or fraudulent reporting requirement 
deficiencies, prescribed under this Act shall not be assessed a civil 
penalty for such violation unless it is determined that the employer 
has violated subsection (a) or (d) with respect to such posting or 
paperwork requirements.''; and
            (3) in subsection (j), to read as follows:
    ``(j)(1) The Commission shall have authority to assess all civil 
penalties under this section. In assessing a penalty under this 
section, the Commission shall give due consideration to the 
appropriateness of the penalty with respect to--
            ``(A) the size of the employer;
            ``(B) the number of employees exposed to the violation;
            ``(C) the likely severity of any injuries directly 
        resulting from such violation;
            ``(D) the probability that the violation could result in 
        injury or illness;
            ``(E) the employer's good faith in correcting the violation 
        after the violation has been identified;
            ``(F) the extent to which employee misconduct was 
        responsible for the violation;
            ``(G) the effect of the penalty on the employer's ability 
        to stay in business;
            ``(H) the history of previous violations; and
            ``(I) whether the violation is the sole result of the 
        failure to meet a requirement, under this Act or prescribed by 
        regulation, with respect to the posting of notices, the 
        preparation or maintenance of occupational safety and health 
        records, or the preparation, maintenance, or submission of any 
        written information.
    ``(2)(A) A penalty assessed under this section shall be reduced by 
at least 25 percent in any case in which the employer--
            ``(i) maintains a safety and health program described in 
        section 8A(a) for the worksite at which the violation (for 
        which the penalty was assessed) took place; or
            ``(ii) demonstrates that the worksite at which the 
        violation (for which the penalty was assessed) took place has 
        an exemplary safety record.
If the employer maintains a program described in clause (i) and has the 
record described in clause (ii), the penalty shall be reduced by at 
least 50 percent.
    ``(B) A penalty assessed against an employer for a violation other 
than a violation that--
            ``(i) has been previously cited by the Secretary;
            ``(ii) creates an imminent danger;
            ``(iii) has caused death; or
            ``(iv) has caused a serious incident,
shall be reduced by at least 75 percent if the worksite at which such 
violation occurred has been reviewed or inspected under a program 
described in section 8A(c)(1) during the 1-year period before the date 
of the citation for such violation, and such employer has complied with 
recommendations to bring such employer into compliance within a 
reasonable period of time.''.

SEC. 9. CONSULTATION SERVICES.

    Section 21(c) (29 U.S.C. <DELETED>671(c) </DELETED>670(c)) is 
amended--
            (1) by striking ``(c) The'' and inserting ``(c)(1) The''; 
        <DELETED>and
        </DELETED>    (2) by striking ``(1) provide'' and inserting 
        ``(A) provide'';
            (3) by striking ``(2) consult'' and inserting ``(B) 
        consult''; and
            <DELETED>(2) </DELETED>(4) by adding at the end the 
        following new paragraph:
    ``(2)(A) The Secretary shall, through the authority granted under 
section 7(c) and paragraph (1), enter into cooperative agreements with 
States for the provision of consultation services by such States to 
employers concerning the provision of safe and healthful working 
conditions. A State that has a plan approved under section 18 shall be 
eligible to enter into a cooperative agreement under this paragraph 
only if such plan does not include provisions for federally funded 
consultation to employers.
    ``(B)(i) Except as provided in clause (ii), the Secretary shall 
reimburse a State that enters into a cooperative agreement under 
subparagraph (A) in an amount that equals 90 percent of the costs 
incurred by the State under such agreement.
    ``(ii) A State shall be fully reimbursed by the Secretary for--
            ``(I) training approved by the Secretary for State staff 
        operating under a cooperative agreement; and
            ``(II) specified out-of-State travel expenses incurred by 
        such staff.
    ``(iii) A reimbursement paid to a State under this subparagraph 
shall be limited to costs incurred by such State for the provision of 
consultation services under this paragraph and the costs described in 
clause (ii).
    ``(C) Notwithstanding any other provision of law, at least 15 
percent of the total amount of funds appropriated for the Occupational 
Safety and Health Administration for a fiscal year shall be used for 
education, consultation, and outreach efforts.''.

SEC. 10. VOLUNTARY PROTECTION PROGRAMS.

    (a) Cooperative Agreements.--The Secretary of Labor shall establish 
cooperative agreements to encourage the establishment of comprehensive 
safety and health management systems that include--
            (1) requirements for systematic assessment of hazards;
            (2) comprehensive hazard prevention, mitigation, and 
        control programs;
            (3) active and meaningful management and employee 
        participation in the voluntary program described in subsection 
        (b); and
            (4) employee safety and health training.
    (b) Voluntary Protection Program.--The Secretary of Labor shall 
establish a voluntary protection program to encourage the achievement 
of excellence in both the technical and managerial protection of 
employees from occupational hazards as follows:
            (1) Application.--Volunteers for the program shall be 
        required to submit an application to the Secretary of Labor 
        demonstrating that the worksite with respect to which the 
        application is made meets such qualifications as the Secretary 
        of Labor may prescribe for participation in the program.
            (2) Onsite evaluations.--There shall be onsite evaluations 
        by representatives of the Secretary of Labor to ensure a high 
        level of protection of employees. The onsite visits shall not 
        result in enforcement citations under the Occupational Safety 
        and Health Act of 1970, as amended, unless representatives of 
        the Secretary of Labor observe hazards for which no agreement 
        can be made to abate the hazards in a reasonable amount of 
        time.
            (3) Information.--Volunteers who are approved for 
        participation by the Secretary of Labor shall assure the 
        Secretary of Labor that information about their safety and 
        health program shall be made readily available to the Secretary 
        of Labor to share with employers.
            (4) Reevaluations.--Continued participation in the program 
        shall require periodic reevaluations by the Secretary of Labor.
            (5) Exemptions.--A site with respect to which a program has 
        been approved shall during participation in the program be 
        exempt from inspections and certain paperwork requirements to 
        be determined by the Secretary of Labor, except inspections or 
        investigations arising from employee complaints, fatalities, 
        catastrophes, or significant toxic releases.
    (c) Annual Fee.--The Secretary of Labor may charge an annual fee to 
participants in a voluntary protection program described in subsection 
(b). The fee shall be in an amount determined by the Secretary of 
Labor, and amounts collected shall be deposited in the general treasury 
of the United States.

SEC. 11. EXTENSION OF COVERAGE TO PUBLIC EMPLOYEES.

    (a) Definition of Employer.--Section 3(5) (29 U.S.C. 652(5)) is 
amended by striking ``but does not include'' and inserting 
``including''.
    (b) Conforming Amendments.--
            (1) Federal agency safety programs and responsibilities.--
        Section 19 (29 U.S.C. 668) is repealed.
            (2) Application of osha provisions to the postal service.--
        Section 410(b) of title 39, United States Code, is amended by 
        striking out paragraph (7) and inserting in lieu thereof the 
        following new paragraph:
            ``(7) the Occupational Safety and Health Act of 1970 (29 
        U.S.C. 651 et seq.);''.