[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2065 Introduced in Senate (IS)]


109th CONGRESS
  1st Session
                                S. 2065

  To amend the Occupational Safety and Health Act of 1970 to further 
 improve the safety and health of working environments, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 18, 2005

 Mr. Enzi (for himself, Mr. Isakson, Mr. Craig, Mr. Burr, Mr. Roberts, 
Mr. Sessions, Mr. Warner, and Mr. Gregg) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
  To amend the Occupational Safety and Health Act of 1970 to further 
 improve the safety and health of working environments, 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; REFERENCES.

    (a) Short Title.--This Act may be cited as the ``Occupational 
Safety Partnership 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. PURPOSE.

    Section 2(b) of the Act (29 U.S.C. 651(b)) is amended--
            (1) in paragraph (13), by striking the period and inserting 
        ``; and''; and
            (2) by adding at the end the following:
            ``(14) by increasing the joint cooperation of employers, 
        employees, and the Secretary of Labor in the effort to ensure 
        safe and healthful working conditions for employees.''.

 SEC. 3. THIRD PARTY CONSULTATION SERVICES PROGRAM.

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

``SEC. 8A. THIRD PARTY CONSULTATION SERVICES PROGRAM.

    ``(a) Purpose.--It is the purpose of this section to encourage 
employers to conduct voluntary safety and health audits using the 
expertise of qualified safety and health consultants and to proactively 
seek individualized solutions to workplace safety and health concerns.
    ``(b) Establishment of Program.--
            ``(1) In general.--Not later than 18 months after the date 
        of enactment of this section, the Secretary shall establish and 
        implement, by regulation, a program that qualifies individuals 
        to provide consultation services to employers to assist 
        employers in the identification and correction of safety and 
        health hazards in the workplaces of employers.
            ``(2) Eligibility.--The following individuals shall be 
        eligible to be qualified under this program as certified safety 
        and health consultants:
                    ``(A) An individual who is licensed by a State 
                authority as a physician, industrial hygienist, 
                professional engineer, safety engineer, safety 
                professional, or registered nurse.
                    ``(B) An individual who has been employed as an 
                inspector for a State plan State or as a Federal 
                occupational safety and health inspector for not less 
                than a 5-year period.
                    ``(C) An individual who is qualified in an 
                occupational health or safety field by an organization 
                whose program has been accredited by a nationally 
                recognized private accreditation organization or by the 
                Secretary.
                    ``(D) An individual who has not less than 10 years 
                experience in workplace safety and health.
                    ``(E) Other individuals determined to be qualified 
                by the Secretary.
            ``(3) Geographical scope of consultation services.--A 
        consultant qualified under this program may provide 
        consultation services in any State.
            ``(4) Limitation based on expertise.--A consultant 
        qualified under this program may only provide consultation 
        services to an employer with respect to a worksite if the work 
        performed at that worksite coincides with the particular 
        expertise of the individual.
    ``(c) Safety and Health Registry.--The Secretary shall develop and 
maintain a registry that includes all consultants that are qualified 
under the program under subsection (b)(1) to provide the consultation 
services described in subsection (b) and shall publish and make such 
registry readily available to the general public.
    ``(d) Disciplinary Actions.--The Secretary may revoke the status of 
a consultant, or the participation of an employer in the third party 
consultation program, if the Secretary determines that the consultant 
or employer--
            ``(1) has failed to meet the requirements of the program; 
        or
            ``(2) has committed malfeasance, gross negligence, 
        collusion or fraud in connection with any consultation services 
        provided by the qualified consultant.
    ``(e) Program Requirements.--
            ``(1) General requirements.--The consultation services 
        described in subsection (b), and provided by a consultant 
        qualified under this program shall, at a minimum, consist of 
        the following elements:
                    ``(A) A comprehensive, on-site, survey and audit of 
                the participating employer's workplace and operations 
                by the consultant.
                    ``(B) The preparation of a consultation report by 
                the consultant.
        The Secretary may, by regulation, prescribe additional 
        requirements for qualifying services.
            ``(2) Consultation report.--
                    ``(A) In general.--Following the consultant's 
                physical survey of the employer's workplace and 
                operations, the consultant shall prepare and deliver to 
                the employer a written report summarizing the 
                consultant's health and safety findings and 
                recommendations. Such consultation report shall, at a 
                minimum, contain the following elements:
                            ``(i) The findings of the consultant's 
                        health and safety audit, and, where applicable, 
                        appropriate remedial recommendations.
                            ``(ii) A recommended health and safety 
                        program and an action plan as described in this 
                        paragraph.
                The Secretary may, by regulation, prescribe additional 
                required elements for qualifying reports.
                    ``(B) Audit and recommendations.--The consultation 
                report shall include an evaluation of the workplace of 
                the participating employer to determine if the employer 
                is in compliance with the requirements of this Act, 
                including any regulations promulgated pursuant to this 
                Act. The report shall identify any practice or 
                condition the consultant believes to be a violation of 
                this Act, and will set out any appropriate corrective 
                measures to address such identified practice or 
                condition.
                    ``(C) Safety and health program.--The consultation 
                report shall contain a recommended safety and health 
                plan designed to reduce injuries, illness, and 
                fatalities and to otherwise manage workplace health and 
                safety. Such safety and health program shall--
                            ``(i) be appropriate to the conditions of 
                        the workplace involved;
                            ``(ii) be in writing, and contain policies, 
                        procedures, and practices designed to recognize 
                        and protect employees from occupational safety 
                        and health hazards, such procedures to include 
                        provisions for the identification, evaluation, 
                        and prevention or control of workplace hazards;
                            ``(iii) be based upon the professional 
                        judgment of the consultant and include such 
                        elements as are necessary to the specific 
                        worksite involved as determined by the 
                        consultant and employer;
                            ``(iv) contain provisions for the periodic 
                        review and modification of the program as 
                        circumstances warrant;
                            ``(v) be developed and implemented with the 
                        participation of affected employees;
                            ``(vi) make provision for the effective 
                        safety and health training of all personnel, 
                        and the dissemination of appropriate health and 
                        safety information to all personnel; and
                            ``(vii) contain appropriate procedures for 
                        the reporting of potential hazards, accidents 
                        and near accidents.
                The Secretary may, by regulation, prescribe additional 
                specific elements that may be required for any 
                qualifying program.
                    ``(D) Action plan.--The consultation report shall 
                also contain a written action plan that shall--
                            ``(i) outline the specific steps that must 
                        be accomplished by the employer prior to 
                        receiving a certificate of compliance;
                            ``(ii) be established in consultation with 
                        the employer; and
                            ``(iii) address in detail--
                                    ``(I) the employer's correction of 
                                all identified safety and health 
                                conditions or practices that are in 
                                violation of this Act, with applicable 
                                timeframes; and
                                    ``(II) the steps necessary for the 
                                employer to implement an effective 
                                safety and health program, with 
                                applicable timeframes.
            ``(3) Certificate of compliance.--Upon completion of the 
        steps described in the Action Plan the qualified consultant 
        shall issue to the employer a Certificate of Compliance in a 
        form prescribed by the Secretary.
    ``(f) Exemption From Civil Penalties for Compliance.--
            ``(1) In general.--If an employer receives a certificate of 
        compliance, the employer shall be exempt from the assessment of 
        any civil penalty under section 17 for a period of 2 years 
        after the date on which the employer receives such certificate.
            ``(2) Exceptions.--An employer shall not be exempt under 
        paragraph (1)--
                    ``(A) if the employer has not made a good faith 
                effort to remain in compliance as required under the 
                certificate of compliance; or
                    ``(B) if there has been a fundamental change in the 
                hazards of the workplace after the issuance of the 
                certificate.
    ``(g) Right To Inspect.--Nothing in this section shall be construed 
to affect the rights of the Secretary to inspect and investigate 
worksites covered by a certificate of compliance.
    ``(h) Renewal Requirements.--An employer that is granted a 
certificate of compliance under this section may receive a 2 year 
renewal of the certificate if a qualified consultant conducts a 
complete onsite safety and health survey to ensure that the safety and 
health program has been effectively maintained or improved, workplace 
hazards are under control, and elements of the safety and health 
program are operating effectively.
    ``(i) Non-Fixed Worksites.--With respect to employer worksites that 
do not have a fixed location, a certificate of compliance shall only 
apply to that worksite which satisfies the criteria under this section 
and such certificate shall not be portable to any other worksite. This 
section shall not apply to employers that perform essentially the same 
work, utilizing the same equipment, at each non-fixed worksite.
    ``(j) Access to Records.--Any records relating to consultation 
services provided by an individual qualified under this program, or 
records, reports, or other information prepared in connection with 
safety and health inspections, audits, or reviews conducted by or for 
an employer and not required under this Act, shall not be admissible in 
a court of law or administrative proceeding or enforcement proceeding 
against the employer except that such records may be used as evidence 
for purposes of a disciplinary action under subsection (d).''.

 SEC. 4. PREVENTION OF ALCOHOL AND SUBSTANCE ABUSE.

    The Act (29 U.S.C. 651 et seq.) is amended by adding at the end the 
following:

``SEC. 34. ALCOHOL AND SUBSTANCE ABUSE TESTING.

    ``(a) Program Purpose.--In order to secure a safe workplace, 
employers may establish and carry out an alcohol and substance abuse 
testing program in accordance with subsection (b).
    ``(b) Federal Guidelines.--
            ``(1) Requirements.--An alcohol and substance abuse testing 
        program described in subsection (a) shall meet the following 
        requirements:
                    ``(A) Substance abuse.--A substance abuse testing 
                program shall permit the use of onsite or offsite 
                testing.
                    ``(B) Alcohol.--The alcohol testing component of 
                the program shall take the form of alcohol breath 
                analysis and shall conform to any guidelines developed 
                by the Secretary of Transportation for alcohol testing 
                of mass transit employees under the Department of 
                Transportation and Related Agencies Appropriations Act, 
                1992.
            ``(2) Definition.--For purposes of this section the term 
        `alcohol and substance abuse testing program' means any program 
        under which test procedures are used to take and analyze blood, 
        breath, hair, urine, saliva, or other body fluids or materials 
        for the purpose of detecting the presence or absence of alcohol 
or a drug or its metabolites. In the case of urine testing, the 
confirmation tests must be performed in accordance with the mandatory 
guidelines for Federal workplace testing programs published by the 
Secretary of Health and Human Services on April 11, 1988, at section 
11979 of title 53, Code of Federal Regulations (including any 
amendments to such guidelines). Proper laboratory protocols and 
procedures shall be used to assure accuracy and fairness, and, 
laboratories must be subject to the requirements of subpart B of the 
mandatory guidelines, State certification, the Clinical Laboratory 
Improvements Act of the College of American Pathologists.
    ``(c) Test Requirements.--This section shall not be construed to 
prohibit an employer from requiring--
            ``(1) an applicant for employment to submit to and pass an 
        alcohol or substance abuse test before employment by the 
        employer; or
            ``(2) an employee, including managerial personnel, to 
        submit to and pass an alcohol or substance abuse test--
                    ``(A) on a for-cause basis or where the employer 
                has reasonable suspicion to believe that such employee 
                is using or is under the influence of alcohol or a 
                controlled substance;
                    ``(B) where such test is administered as part of a 
                scheduled medical examination;
                    ``(C) in the case of an accident or incident, 
                involving the actual or potential loss of human life, 
                bodily injury, or property damage;
                    ``(D) during the participation of an employee in an 
                alcohol or substance abuse treatment program, and for a 
                reasonable period of time (not to exceed 5 years) after 
                the conclusion of such program; or
                    ``(E) on a random selection basis in work units, 
                locations, or facilities.
    ``(d) Construction.--Nothing in this section shall be construed to 
require an employer to establish an alcohol and substance abuse testing 
program for applicants or employees or make employment decisions based 
on such test results.
    ``(e) Preemption.--The provisions of this section shall preempt any 
provision of State law to the extent that such State law is 
inconsistent with this section.
    ``(f) Investigations.--The Secretary is authorized to conduct 
testing of employees (including managerial personnel) of an employer 
for use of alcohol or controlled substances during any investigations 
of a work-related fatality or serious injury. Such testing shall be 
done as soon as practicable after the incident giving rise to such 
work-related fatality or serious injury.''.

 SEC. 5. 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;
            (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.--
            (1) In general.--The Secretary of Labor shall establish and 
        carry out a voluntary protection program (consistent with 
        subsection (a)) to encourage excellence and recognize the 
        achievement of excellence in both the technical and managerial 
        protection of employees from occupational hazards.
            (2) Program requirement.--The voluntary protection program 
        shall include the following:
                    (A) Application.--Employers who volunteer under 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 requirements as the Secretary of Labor may require 
                for participation in the program.
                    (B) 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 of citations under the Occupational Safety 
                and Health Act of 1970 (29 U.S.C. 651 et seq.).
                    (C) Information.--Employers 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 shall be made 
                readily available to the Secretary of Labor to share 
                with employees.
                    (D) Reevaluations.--Periodic reevaluations by the 
                Secretary of Labor of the employers shall be required 
                for continued participation in the program.
            (3) Exemptions.--A site with respect to which a program has 
        been approved shall, during participation in the program be 
        exempt from inspections or investigations and certain paperwork 
        requirements to be determined by the Secretary of Labor, except 
        that this paragraph shall not apply to inspections or 
        investigations arising from employee complaints, fatalities, 
        catastrophes, or significant toxic releases.

SEC. 6. EXPANDED ACCESS TO VVP FOR SMALL BUSINESSES.

    The Secretary of Labor shall establish and implement, by 
regulation, a program to increase participation by small businesses (as 
the term is defined by the Administrator of the Small Business 
Administration) in the voluntary protection program through outreach 
and assistance initiatives and the development of program requirements 
that address the needs of small businesses.

 SEC. 7. TECHNICAL ASSISTANCE PROGRAM.

    (a) In General.--Section 21(c) of the Act (29 U.S.C. 670(c)) is 
amended--
            (1) by striking ``(c) The'' and inserting ``(c)(1) The'';
            (2) by striking ``(1) provide'' and inserting ``(A) 
        provide'';
            (3) by striking ``(2) consult'' and inserting ``(B) 
        consult''; and
            (4) 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.
    ``(B)(i) 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 reimbursed by the Secretary for 90 percent 
of the costs incurred by the State for the provision of--
            ``(I) training approved by the Secretary for State 
        personnel operating under a cooperative agreement; and
            ``(II) specified out-of-State travel expenses incurred by 
        such personnel.
    ``(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).''.
    (b) Pilot Program.--Section 21 of the Act (29 U.S.C. 670) is 
amended by adding at the end the following:
    ``(e)(1) Not later than 90 days after the date of enactment of this 
subsection, the Secretary shall establish and carry out a pilot program 
in 3 States to provide expedited consultation services, with respect to 
the provision of safe and healthful working conditions, to employers 
that are small businesses (as the term is defined by the Administrator 
of the Small Business Administration). The Secretary shall carry out 
the program for a period not to exceed 2 years.
    ``(2) The Secretary shall provide consultation services under 
paragraph (1) not later than 4 weeks after the date on which the 
Secretary receives a request from an employer.
    ``(3) The Secretary may impose a nominal fee to an employer 
requesting consultation services under paragraph (1). The fee shall be 
in an amount determined by the Secretary. Employers paying a fee shall 
receive priority consultation services by the Secretary.
    ``(4) In lieu of issuing a citation under section 9 to an employer 
for a violation found by the Secretary during a consultation under 
paragraph (1), the Secretary shall permit the employer to carry out 
corrective measures to correct the conditions causing the violation. 
The Secretary shall conduct not more than 2 visits to the workplace of 
the employer to determine if the employer has carried out the 
corrective measures. The Secretary shall issue a citation as prescribed 
under section 5 if, after such visits, the employer has failed to carry 
out the corrective measures.
    ``(5) Not later than 90 days after the termination of the program 
under paragraph (1), the Secretary shall prepare and submit a report to 
the appropriate committees of Congress that contains an evaluation of 
the implementation of the pilot program.''.

 SEC. 8. CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION FOR 
              CERTAIN OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION 
              PERSONNEL.

    Section 8 of the Act (29 U.S.C. 657) is amended by adding at the 
end the following:
    ``(i) Any Federal employee responsible for enforcing this Act 
shall, not later than 2 years after the date of enactment of this 
subsection or 2 years after the initial employment of the employee 
involved, meet the eligibility requirements prescribed under subsection 
(b)(2) of section 8A.
    ``(j) The Secretary shall ensure that any Federal employee 
responsible for enforcing this Act who carries out inspections or 
investigations under this section, receive professional education and 
training at least every 5 years as prescribed by the Secretary.''.

SEC. 9. OSHA AND INDUSTRY TRAINING EXCHANGE DEMONSTRATION PROGRAM.

    (a) In General.--The Secretary of Labor, acting through the 
Occupational Safety and Health Administration, is authorized to develop 
and implement at least one training and educational exchange program 
with a specialty trade in the construction industry for the purpose 
of--
            (1) facilitating the exchange of expertise and ideas 
        related to the interpretation, application, and implementation 
        of Federal occupational safety and health standards and 
        regulations applicable to the specialty trade involved 
        (referred to in this section as ``OSHA Rules'');
            (2) improving collaboration and coordination between the 
        Occupational Safety and Health Administration and such 
        specialty trade regarding OSHA Rules;
            (3) identifying OSHA Rules which the specialty trade and 
        Occupational Safety and Health Administration compliance 
        officers have repeatedly found to be difficult to interpret, 
        apply, or implement;
            (4) allowing qualified safety directors from the specialty 
        trade to train such compliance officers and others within the 
        Administration responsible for writing and interpreting OSHA 
        Rules, both on the jobsite and off, on the unique nature of the 
        specialty trade and the difficulties contractors and safety 
        directors encounter when attempting to comply with OSHA Rules 
        as well as the best practices within the specialty trade;
            (5) seeking the means to ensure greater compliance with the 
        identified OSHA Rules, and reducing the number of citations 
        based on any misunderstanding by such compliance officers as to 
        the scope and application of an OSHA Rule or the unique nature 
        of the workplace construction; and
            (6) establishing within the Occupational Safety and Health 
        Administration Training Institute a trade-specific curriculum 
        to be taught jointly by qualified trade safety directors and 
        compliance officers.
    (b) Initial Program.--The initial training and educational exchange 
program shall be established under subsection (a) with the masonry 
construction industry.
    (c) Reports.--Upon the expiration of the 2-year program under 
subsection (a), the Administrator of the Occupational Safety and Health 
Administration, jointly with specialty trades that participate in 
programs under such subsection, shall prepare and submit to the 
Committee on Health, Education, Labor, and Pensions of the Senate and 
the Committee on Education and Workforce of the House of 
Representatives a report on the activities and results of the training 
and educational exchange program.
    (d) Definition.--In this section, the term ``qualified safety 
director'' means an individual who has, at a minimum, taken the 10-hour 
Occupational Safety and Health Administration course and been employed 
a minimum of 5 years as a safety director in the construction industry.
    (e) Authorization of Appropriations.--There are authorized to be 
appropriated, such sums as may be necessary to carry out this section.
    (f) Termination.--The programs established under subsection (a) 
shall terminate on the date that is 2 years after the date on which the 
first program is so established.
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