[Congressional Record Volume 141, Number 98 (Thursday, June 15, 1995)]
[Extensions of Remarks]
[Pages E1261-E1263]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


         SAFETY AND HEALTH IMPROVEMENT AND REGULATORY REFORM ACT

                                 ______


                          HON. CASS BALLENGER

                           of north carolina

                    in the house of representatives

                        Wednesday, June 14, 1995
  Mr. BALLENGER. Mr. Speaker, today I, along with over 60 of my 
colleagues, am introducing the Safety and Health Improvement and 
Regulatory Reform Act of 1995. The legislation will comprehensively 
change the Federal Occupational Safety and Health Act. Few Federal 
programs are in need of change as much as this one.
  Ensuring and promoting the basic safety and health protections for 
workers in this country is a moral as well as an economic imperative. 
Safe and healthful working conditions for our Nation's workers is not 
and should not be a partisan matter, nor is it exclusively the interest 
or responsibility of any one group or special interest. Society, 
through government, employers, and employees themselves, have 
responsibilities in helping to make sure that life and limb are not the 
price for being employed.
  Mr. Speaker, I am an employer and a businessman myself. I know that 
for most employers, the phrase ``our employees are our most valuable 
resource'' is not mere rhetoric, but the way in which we view our 
businesses. For too long, the Federal Government, particularly in 
programs like OSHA, has viewed employers as adversaries, to be policed 
and watched over with all kinds of rules and penalties if those rules 
should be broken in any detail. I know that there are people in 
business who try to take shortcuts, and there are some who are just 
plain crooks. There needs to be enforcement. But heavy enforcement 
should be the last resort, not the first resort.
  To be committed to worker safety and health does not mean to be 
committed to the way in which OSHA has been operating. President 
Clinton recently stated it quite well:

       * * * frankly sometimes the rules have simply become too 
     complex, too specific for even the most diligent employer to 
     follow, and that if the government awards inspections for 
     writing citations and levying fines more than ensuring 
     safety, there's a chance you could get more citations, more 
     fines, more hassle, and no more safety.

  That is the problem we are trying to address with this legislation: 
Too often OSHA has had too little to do with promoting basic safety and 
health for workers, and too much to do with promoting Government rules.
  In my view nothing illustrates how OSHA has gone off on the wrong 
track more clearly than the fact that today few if any employers would 
ever call OSHA and ask for assistance or advice on workplace safety or 
health. That is not because employers don't want assistance, or are not 
aware of the importance and cost savings from avoiding workplace 
accidents and injuries. It is because OSHA's mission has become 
misdirected into a simply finding violations of regulations and issuing 
penalties.
  We believe that a more fair and more effective workplace safety and 
health program would rely primarily on nonenforcement efforts, with 
enforcement reserved for those situations and employers where the 
circumstances show that enforcement is necessary and justified. Our 
bill reserves, after a 3-year phase-in period, one-half of OSHA's funds 
for nonenforcement efforts. Those funds would be used:
  To expand the State consultation grants program which provides on-
site assistance to small businesses in high hazard industries. In many 
States, the shortage of resources has meant waiting periods of up to 2 
years for employers who seek these services. [[Page E1262]] 
  To expand OSHA's Voluntary Protection Program [VPP], which recognizes 
and grants exemption from enforcement inspections for employers with 
exemplary safety records and programs.
  To support additional training, education, and outreach programs, 
designed to promote safe work practices with employers and employees.
  To establish and oversee a new certification program for private 
individuals to conduct workplace safety and health reviews. Once 
underway this program would allow employers the opportunity to be free 
of OSHA inspections as long as the employer had no reportable 
accidents--fatalities or multiple injuries--and no employee complaints.
  The use of private individuals to conduct workplace safety and health 
reviews in lieu of OSHA inspections was part of Vice President Gore's 
proposed reinvention of the Federal Government. It died in the hands of 
an agency that is unwilling to give up the notion that but for OSHA 
employees have no protection against their employers. That notion is 
not only false, it is silly. The fact is, as many of my Democratic 
colleagues frequently point out, OSHA inspects only a small number of 
worksites and employers every year--around 40,000 in recent years. Many 
employers avoid inspection for years--in fact, it is this inequity of 
inspections, in which some employers are inspected nearly every year 
and their competitors may never be inspected, that along with the 
arbitrariness of citations and fines, often fuels the rage of employers 
against OSHA. Vice President Gore's National Performance Review rightly 
recognized that ``an army of OSHA inspectors'' was neither necessary 
nor, in light of the Federal budget situation, likely. The use of 
private individuals to conduct workplace reviews provides a means of 
extending expertise and attention to workplace safety and health, while 
allowing us to reduce the role of the Federal Government.
  Our bill makes one other important change in regards to putting the 
emphasis of the program back on safety and health, rather than on 
collecting penalties. OSHA's interpretation of the current statute is 
and has long been that an inspector who observes a violation of any 
regulation, unless the violation
 itself can be classified as de minimis, must issue a citation for that 
violation. It does not matter whether the violation is not threatening 
to any employees. Nor does it matter whether the employer knew of the 
regulation--he or she is presumed to know all of what is printed in the 
Federal Register and in unending compliance directives from Washington.

  OSHA has announced that it will soon begin a program to reduce 
penalties for alleged violations that are corrected immediately, while 
the inspection is still underway. While this may seem like only common 
sense, it at least takes OSHA a step in the right direction. But it 
certainly does not go far enough. Under our bill, the general rule 
would be that OSHA will work with employers to identify and correct 
hazards, and that only if the employer fails to do so, or if a 
violation has caused a serious injury or death, a fine would be issued. 
OSHA's mission should be abatement of safety and health hazards and 
safer workplaces, not collecting revenues for the Federal Government. 
When the employer corrects the problem, and no one has been injured or 
killed as a result of a violation, the Federal Government's interest in 
safety and health is satisfied.
  In addition to refocusing OSHA on what should be its mission--safety 
and health, this bill implements two pieces of legislation already 
passed by the House. First, with regard to how regulations will be 
issued, the bill includes the reforms overwhelmingly passed by the 
House earlier this year and incorporated into H.R. 9.
  Second, consistent with the House-passed budget resolution, the bill 
includes the merger of the Mine Safety and Health Administration with 
the Occupational Safety and Health Administration and the elimination 
of the National Institute on Occupational Safety and Health [NIOSH] as 
a separate agency within the Department of Health and Human Services. 
Although we are merging MSHA and OSHA, I do want to emphasize to my 
colleagues that the bill specifically directs the newly merged agency 
to continue to enforce mining regulations in mines, and to maintain its 
corps of specialized mine inspectors. In fact, the bill requires that 
the kind of specialized and expert inspectors that have been the 
strength of the mine safety program also be the model for how OSHA's 
inspectorate should be improved.
  Mr. Speaker, following is a section-by-section description of our 
legislation. I would welcome my colleague's support and cosponsorship 
and I look forward to working with my colleagues in helping to pass 
this much needed legislation.
Section-by-Section Description of The Safety and Health Improvement and 
              Regulatory Reform Act of 1995--June 14, 1994

        Section 1. Short Title, Table of Contents, Reference.
       Section 2. Standards.
       Requires that standards issued by OSHA be based on risk 
     assessment, regulatory impact and cost-benefit analysis, 
     similar to proposals already adopted by the House. Requires 
     that the risk assessment and cost-benefit analysis be 
     industry-specific.
       Requires that benefits be ``justified by and be reasonably 
     related'' to be costs of the standard.
       Requires that standards be ``feasible'' and ``practical.''
       Prohibits OSHA from citing an employer under a standard if 
     a request from the employer for a variance on the standard 
     involved has been pending for more than 90 days.
       Requires that each standard in effect at the time of 
     enactment be reviewed within 7 years for compliance with the 
     new risk assessment and cost-benefit criteria. Creates a 
     petition process whereby affected parties can obtain review 
     of existing standards for compliance with the new criteria. 
     Requires the Secretary to accept or reject the petition 
     regarding a standard within 120 days.
       Requires independent peer review of the economic and 
     scientific data which forms the basis for the standard, 
     including the relevance of the data to industries and workers 
     affected by the standard. Requires the panel to be broadly 
     representative and balanced.
       Section 3. Notice of Violation.
       Requires that OSHA issue a warning to employers and 
     specifies a reasonable
      time frame to fix the alleged violation. If the violation is 
     not corrected within 30 days (or shorter if it constitutes 
     a direct threat to employees) a citation may be issued. 
     Exceptions to this policy would be allowed if a fatality 
     or serious injury occurred.
       Eliminates penalties for posting, recordkeeping, reporting, 
     or notification unless there is a direct threat or injury or 
     intent to mislead or deceive employees or OSHA.
       Section 4. Consultation, Incentives for Voluntary Action, 
     and Technical Assistance.
       Creates a new program allowing certified individuals to 
     conduct safety and health reviews for employers. Exempts 
     employers who utilize such individuals from random OSHA 
     inspections.
       Expands the Small Business Consultation program.
       Codifies the Voluntary Protection Program (VPP) which 
     recognizes and provides an exemption for employers with 
     exemplary programs and safety records.
       Transfer NIOSH training functions to OSHA.
       Targets at least 50 percent of OSHA funds (after a three 
     year phase-in) for non-enforcement activities (small business 
     consultation, training, education, and compliance assistance 
     programs).
       Section 5. Removal of Barriers to Voluntary Safety and 
     Health Activities.
       Provides that an employee participation program which deals 
     in whole or in part with safety and health is not a violation 
     of section 8(a)(2) of the National Labor Relations Act.
       Provides a legal ``privilege'' for safety and health audits 
     which are done voluntarily by an employer.
       Section 6. Inspections.
       Requires that an employee bring a complaint over an alleged 
     violation of a safety or health standards to attention of the 
     employer before filing with OSHA. If the employer fails to 
     correct the violation, the employee may then file a complaint 
     with OSHA. Requires that a copy of the complaint be provided 
     to the employer no later than the time of the inspection.
       Creates a legal requirement that OSHA inspections be 
     conducted by at least one individual who has technical 
     expertise by training or experience in the industry under 
     inspection.
       Requires OSHA to enter agreements with other enforcement 
     agencies to check for fire hazards and report them to OSHA if 
     necessary.
       Exempts small businesses (fifty or fewer employees) that 
     have below average injury rates from random safety 
     inspections.
       Codifies appropriation exemption for small farms (employing 
     10 or fewer workers and not maintaining a labor camp) from 
     random safety inspections.
       Section 7. Employer Defense.
       Provides a defense against citation for ``employee 
     misconduct.''
       Creates a defense for employers who have utilized 
     alternative methods which are equally or more protective of 
     an employee's safety and health in the workplace.
       Provides a defense against any regulatory action of an 
     employer is in compliance with another federal requirement 
     which overlaps or is in conflict.
       Section 8. Penalties.
       Repeals separate penalties for ``willful'' and ``repeat'' 
     violations.
       Lists seven criteria to be used in assessing penalties.
       Creates a special assessment which allows higher penalties 
     in cases where violations cause a death or an excessive 
     number of serious injuries.
       Provides that no penalties may be issued unless a standard 
     or regulation exists.
       Clarifies that state or local law enforcement agencies may 
     conduct criminal prosecutions for conduct falling under state 
     criminal laws.
       Section 9. Review by the Commission.
       Extends the time an employer may contest a citation from 15 
     to 30 days.
       Gives deference to interpretations of standards by the 
     Commission (overturns the CF&I case). [[Page E1263]] 
       Increases the number of members of the Commission from 3 to 
     5 and specifies that one member of the Commission should have 
     experience in mining.
       Allows parties to waive formal proceedings before the 
     Commission.
       Section 10. NIOSH Repealed.
       Repeals the National Institute of Occupational Safety and 
     Health.
       Section 11. State Workmen's Compensation Commission 
     Repealed.
       Repeals this Commission which has completed its function.
       Section 12. State Programs.
       Encourages state OSHA programs to follow federal standards 
     when applicable to products or labeling.
       Provides additional flexibility to state OSHA programs by 
     allowing states to adopt alternative methods of enforcement 
     that are at least as effective as the Federal program.
       Section 13. Discrimination.
       Extends time for filing complaints to 60 days. Requires 
     that DOL notify the person named in the complaint and 
     investigate within 60 days. Provides that if DOL does not 
     decide to prosecute the case within 60 days, the complainant 
     may take the case directly to the Review Commission for a 
     hearing and a decision. Provides for an appeal of the 
     Commission decision to the Court of Appeals. Encourages the 
     use of mediation in all disputes.
       Section 14. Coverage of Federal Agencies.
       Covers all federal agencies under the federal OSHA 
     requirements.
       Section 15. Federal Agency Safety Programs.
       Repeals Section 19 of current law which requires federal 
     agencies to maintain their own safety and health programs 
     (repealed because of changes described in Section 14).
       Section 16. Prevention of Alcohol and Substance Abuse.
       Provides ``safe harbor'' for employers conducting drug and 
     alcohol testing which follows HHS (drug) and DOT (alcohol) 
     guidelines. Authorizes OSHA to conduct drug and alcohol 
     testing when investigating workplace deaths and serious 
     injuries.
       Section 17. Mine Safety and Health.
       Merges the Mine Safety and Health Administration (MSHA) 
     with OSHA.
       Transfers all MSHA standards to OSHA.
       Requires all underground mines to be inspected at least 
     once per year.
       Requires all mining inspectors to have 5 years of practical 
     mining experience.
       Authorizes closure orders in cases of imminent danger and 
     requires that such order be reviewable in court within one 
     day.
       Authorizes fines against miners who violate the mandatory 
     safety standard related to smoking in the mine.
       Section 18. Recordkeeping and Reporting.
       Modifies recordkeeping requirements to insure that 
     recordable injuries and illnesses are work-related, involve 
     medical treatment, and include one or more days of lost work 
     or restricted work.
       Specifies that any records of injuries and illnesses 
     submitted to the Secretary may not be disclosed in any manner 
     that identifies individual employers or workplaces.
       Section 19. Definitions.
       Defines ``serious injury'' and ``industry.''
       Section 20. Miscellaneous Technical Amendments.
       Requires the Secretary to provide recommendations for 
     legislation to avoid unnecessary duplication and coordination 
     between this Act and other federal laws.
       Requires OSHA to establish a program for certification of 
     equipment and specifies that it be conducted by 
     nongovernmental entities unless such facilities are not 
     available.
       Although not specifically referenced in this legislative 
     language, it is assumed that NIOSH research activities will 
     be transferred to another governmental agency.
       Section 21. Effective Date.
       This Act become effective 120 days after the date of 
     enactment.
     

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