[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 551 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 551

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 10, 1997

   Mr. Gregg introduced the following bill; which was read twice and 
         referred to the Committee on Labor and Human Resources

_______________________________________________________________________

                                 A BILL


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

    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 ``OSHA Modernization 
Act of 1997''.
    (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:
    ``(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 inserting after subsection (f) the following:
    ``(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 the 
        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 prohibit 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 the inspections, and assessing a penalty 
        for the 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 
        1 employee or that results in the hospitalization of at least 3 
        employees, and taking any action pursuant to an investigation 
        conducted with respect to the report; and
            ``(E) taking any action authorized by this Act with respect 
        to complaints of discrimination against employees for 
        exercising the rights of the employees 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 a 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) The 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 
described in subparagraph (A) 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 
employee or the representative of the employee 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).
    ``(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 described in subparagraph (A) exists, the Secretary 
may conduct an inspection in accordance with this subsection as soon as 
practicable. Except as provided in clause (ii), the inspection shall be 
conducted for the limited purpose of determining whether the violation 
or danger exists.
    ``(ii) During an 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 conducted under this subsection that there are not 
reasonable grounds to believe a violation or danger described in 
paragraph (1)(A) 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 determination of the 
Secretary.
    ``(3) The Secretary or an authorized representative of the 
Secretary may, as a method of investigating an alleged violation or 
danger under this subsection, 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 an inspection under 
this subsection if the Secretary determines that a request for an 
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:

``SEC. 8A. HEALTH AND SAFETY MODERNIZATION 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 the 
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 1 or more employees or the 
        hospitalization of 3 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; or
                    ``(C) a workplace consultation program provided by 
                a qualified person certified by the Secretary, for 
                purposes of providing workplace consultations,
        that includes a means of ensuring that serious hazards 
        identified in a 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 
                employees of the employer that are inherent to the 
                operations or business of the employer;
                    ``(B) procedures for correcting or controlling the 
                hazards in a timely manner based upon the severity of 
                the hazards; and
                    ``(C) an employee participation program that, at a 
                minimum--
                            ``(i) includes regular consultation between 
                        the employer and the nonsupervisory employees 
                        of the employer regarding safety and health 
                        issues;
                            ``(ii) includes the opportunity for the 
                        nonsupervisory employees of the employer to 
                        make recommendations regarding hazards in the 
                        workplace and to receive responses or to 
                        implement improvements in response to the 
                        recommendations; and
                            ``(iii) ensures that the participating 
                        nonsupervisory employees of the employer have 
                        training or expertise on safety and health 
                        issues consistent with the responsibilities of 
                        the employees.
``A person that conducts a review or inspection under paragraph (1)(B) 
shall meet standards established by the Secretary and shall be 
certified by the Secretary.
    ``(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 provides certification to 
the Secretary and notice to the employees of the employer of the 
eligibility of the employer for the exemption. 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 the 
        employer; or
            ``(2) the employer has not taken measures to address 
        serious hazards in the workplace of the employer identified 
        during the inspection, audit, or review.''.
    (b) Definition.--Section 3 (29 U.S.C. 652) is amended by adding at 
the end the following:
            ``(15) The term `exemplary safety and health record' means 
        a record that the Secretary shall establish annually for each 
        industry that identifies the employers in the industry that 
        provide safe and healthful working conditions for the employees 
        of the employers. The 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:
    ``(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 an 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 the employer 
demonstrates that--
            ``(1) the employees of the 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 the employees 
        by the employer and the employer has taken reasonable measures 
        to discipline employees when violations of the work rules have 
        been discovered;
            ``(3) the failure of employees to observe work rules led to 
        the violation; and
            ``(4) reasonable measures have been taken by the 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 the employer demonstrates that 
employees of the employer were protected by alternative methods that 
were equally or more protective of the safety and health of the 
employees than the methods required by the 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 the following:
    ``(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 an 
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 an 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 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) by striking subsection (i) and inserting the following:
    ``(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 a violation unless the Secretary determines that the 
employer has violated subsection (a) or (d) with respect to the posting 
or paperwork requirements.''; and
            (3) by striking subsection (j) and inserting the following:
    ``(j)(1) The Commission shall have authority to assess all civil 
penalties under this section. In assessing a penalty under this section 
for a violation, the Commission shall give due consideration to the 
appropriateness of the penalty with respect to--
            ``(A) the size of an employer;
            ``(B) the number of employees exposed to the violation;
            ``(C) the likely severity of any injuries directly 
        resulting from the violation;
            ``(D) the probability that the violation could result in 
        injury or illness;
            ``(E) the good faith of the employer 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 ability of an 
        employer to stay in business;
            ``(H) the history of previous violations by an employer; 
        and
            ``(I) whether the violation is the sole result of the 
        failure of an employer 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 
not less than 25 percent in any case in which the employer--
            ``(i) maintains a safety and health program described in 
        section 8A(a) for the worksite where the violation, for which 
        the penalty was assessed, occurred; or
            ``(ii) demonstrates that the worksite where the violation, 
        for which the penalty was assessed, occurred has an exemplary 
        safety and health 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 not 
less than 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 not less than 75 percent if the worksite where the 
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 the violation, and the employer has complied with 
recommendations by the Secretary to bring the employer into compliance 
within a reasonable period of time.''.

SEC. 9. CONSULTATION SERVICES.

    Section 21(c) (29 U.S.C. 670(c)) is amended--
            (1) by striking ``(c) The'' and inserting ``(c)(1) The''; 
        and
            (2) by adding at the end the following:
    ``(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 the 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 for the provision of consultation services 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 
        the 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, not less than 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 with employers to encourage the establishment of 
comprehensive safety and health management systems that include--
            (1) requirements for systematic assessment of hazards in 
        the workplace;
            (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.--The representatives of the 
        Secretary of Labor shall conduct onsite evaluations of the 
        worksite of the participants in the program to ensure a high 
        level of protection of employees of the participants. The 
        onsite evaluations shall not result in enforcement citations 
        under the Occupational Safety and Health Act of 1970 (29 U.S.C. 
        651 et seq.), unless representatives of the Secretary of Labor 
        observe hazards for which no agreement can be made to abate the 
        hazards within a reasonable time period.
            (3) Information.--Volunteers who are approved by the 
        Secretary of Labor for participation in the program shall 
        assure the Secretary of Labor that information about the safety 
        and health program of the volunteers shall be made readily 
        available to the Secretary of Labor to share with employers.
            (4) Reevaluations.--Periodic reevaluations by the Secretary 
        of Labor of the volunteers shall be required for continued 
        participation in the program.
            (5) Exemptions.--A site with respect to which a program has 
        been approved shall, during participation of a volunteer in the 
        program, be exempt from inspections and certain paperwork 
        requirements to be determined by the Secretary of Labor, except 
        that this paragraph shall not apply to inspections 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.
                                 <all>