[Congressional Record Volume 143, Number 35 (Tuesday, March 18, 1997)]
[Senate]
[Pages S2434-S2438]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

       By Mrs. HUTCHISON (for herself, Mr. Inhofe, and Mr. Helms):
  S. 461. A bill to amend the Occupational Safety and Health Act of 
1970 and the National Labor Relations Act to modify certain provisions, 
to transfer certain occupational safety and health functions to the 
Secretary of Labor, and for other purposes; to the Committee on Labor 
and Human Resources.


         THE OCCUPATIONAL SAFETY AND HEALTH REFORM ACT OF 1997

  Mrs. HUTCHISON. Mr. President, I rise today to introduce, along with 
my colleagues, Mr. Inhofe and Mr. Helms, the Occupational Safety and 
Health Reform Act of 1997. This legislation will transform OSHA from an 
agency that generates fines and paperwork to one that plays a more 
constructive role in improving worker safety.
  Mr. President, the Occupational Safety and Health Act was enacted in 
1970. It may not surprise my colleagues that since that time, the 
incidence of work-related injuries and illnesses has steadily declined. 
But it may surprise them to learn that in the 25 years prior to 
enactment of OSHA, workplace injuries declined almost twice as fast as 
they have since the enactment of OSHA. The reduction of workplace 
injuries, which had been occurring before OSHA was created, has 
actually slowed since the agency was created.
  One may reasonably ask, why is that the case? Mr. President, I have 
talked to hundreds of business people throughout my State of Texas and 
throughout the Nation. Time and again, I have heard stories of 
burdensome and complex OSHA requirements and of arbitrary and unfair 
inspections and fines.
  The vast majority of other employers in this country desire and 
strive to see to it that their employees have a safe place to work. 
Indeed, it is in their own best interest to do so. Injuries are costly: 
They interrupt production schedules, cause a loss of productivity and 
increase the burgeoning expense of workers' compensation, not to 
mention the impact on overall employee morale and productivity.
  Many of the employers I speak with would like to work with, rather 
than against OSHA, but fear that if they take any affirmative steps to 
improve and review the safety of their workplace, it will only serve to 
attract aggressive OSHA inspectors. Thus, rather than helping to raise 
the safety level of American workers, the Occupational Safety and 
Health Act actually discourages employers in many cases from 
aggressively working to improve workplace health and safety.
  Remarkably, OSHA's response to the growing call for reform of its 
enforcement tactics has been to seek to expand its territory. Most 
recently,

[[Page S2435]]

OSHA has worked on establishing new and enormously costly standards on 
ergonomics and even on the prevention of nighttime crime at retail 
stores.

  Mr. President, when Congress established OSHA, it did so with the 
intent that the agency, employers, and employees would all work toward 
the common purpose of creating safer and healthier workplace 
environments. Unfortunately, the culture of OSHA has evolved into one 
of regulatory excess, punitive enforcement, and standard setting based 
on arbitrariness rather than sound cost/benefit analysis. Things have 
gotten so bad that OSHA inspectors have even testified that they have 
been required to meet monthly quotas for citations and fines.
  The bill I am introducing today will restore OSHA to its intended 
mission by requiring the agency to take a commonsense approach to 
establishing safety standards and by encouraging cooperation and 
voluntary improvement rather than confrontation. In brief, the bill:
  Requires that OSHA, prior to setting a new standard, establish that a 
worksite safety hazard exists and consider whether it can economically 
be corrected using feasible technology;
  It provides safety consultation and assistance to small businesses to 
encourage OSHA compliance;
  It gives employers an opportunity to correct problems identified by 
employees before a formal OSHA complaint is filed, and protects 
employees who raise safety concerns to their employers;
  It stops the practice of citing contractors for the violations of 
subcontractors whose employees are not under the contractor's control;
  It limits employers' liability for the unsafe conduct of employees 
who have been properly trained and equipped by their employer;
  It requires that fines for violations be proportional to their actual 
impact on employee safety; and
  It will end the de facto practice of establishing quotas for 
enforcement activities.
  Mr. President, I realize that there are employers out there who may 
not care about the safety of their employees. To them, I say, beware. 
Under this bill, OSHA will be freed to concentrate its resources and 
enforcement efforts on those employers who willfully disregard 
workplace safety.
  But to the other 99 percent of the honest, hardworking business 
people in America who want to do right by their employees, I say: We 
have heard your call for action, and help is on the way. I urge them 
and I urge my colleagues to support this important legislation.
  Mr. President, I ask unanimous consent that the text of my bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 461

       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 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. USE OF OSHA IN PRIVATE LITIGATION.

       Section 4(b)(4) (29 U.S.C. 653(b)(4)) is amended by adding 
     at the end the following: ``An allegation of a violation, a 
     finding of a violation, or an abatement of an alleged 
     violation, under this Act or the standards promulgated under 
     this Act shall not be admissible as evidence in any civil 
     action or used to increase the amount of payments received 
     under any workmen's compensation law for any work-related 
     injury.''.

     SEC. 3. DUTIES OF EMPLOYERS AND EMPLOYEES.

       Section 5 (29 U.S.C. 654) is amended by adding at the end 
     the following:
       ``(c) On multiemployer work sites, an employer may not be 
     cited for a violation of this section if the employer--
       ``(1) has no employees exposed to the violation; and
       ``(2) has not created the condition that caused the 
     violation or assumed responsibility for ensuring compliance 
     by other employers on the work site.''.

     SEC. 4. STANDARD SETTING.

       (a) Standards.--Section 6(b)(5) (29 U.S.C. 655(b)(5)) is 
     amended to read as follows:
       ``(5) The development of a standard under this section 
     shall be based on the latest scientific data in the field and 
     on research demonstrations, experiments, and other 
     information that may be appropriate. In establishing the 
     standard, the Secretary shall consider, and make findings 
     based on, the following factors:
       ``(A) The standard shall be needed to address a significant 
     risk of material impairment to workers and shall 
     substantially reduce that risk.
       ``(B) The standard shall be technologically and 
     economically feasible.
       ``(C) There shall be a reasonable relationship between the 
     costs and benefits of the standard.
       ``(D) The standard shall provide protection to workers in 
     the most cost-effective manner and minimize employment loss 
     due to the standard in the affected industries and sectors of 
     industries.
       ``(E) The standard shall set forth objective criteria and 
     the performance desired.''.
       (b) Variances.--Section 6(d) (29 U.S.C. 655(d)) is amended 
     by adding at the end the following: ``No citation shall be 
     issued for a violation of an occupational safety and health 
     standard that is the subject of a good faith application for 
     a variance during the period the application is pending 
     before the Secretary.''.
       (c) Standard Priorities.--The second sentence of section 
     6(g) (29 U.S.C. 655(g)) is amended to read as follows: ``In 
     determining the priority for establishing standards with 
     regard to toxic materials or the physical agents of toxic 
     materials, the Secretary shall consider the number of workers 
     exposed to the substance, the nature and severity of 
     potential impairment, and the likelihood of the impairment 
     based on information obtained by the Secretary from the 
     Environmental Protection Agency, the Department of Health and 
     Human Services, and other appropriate sources.''.
       (d) Regulatory Flexibility Analysis.--Section 6 (29 U.S.C. 
     655) is amended by adding at the end the following:
       ``(h) In promulgating an occupational safety and health 
     standard under subsection (b), the Secretary shall perform a 
     regulatory flexibility analysis described in sections 603 and 
     604 of title 5, United States Code.
       ``(i) In promulgating any occupational safety and health 
     standard under subsection (b), the Secretary shall minimize 
     the time, effort, and costs involved in the retention, 
     reporting, notification, or disclosure of information to the 
     Secretary, to third parties, or to the public. Compliance 
     with the requirement of this subsection may be considered in 
     a review of a petition filed under subsection (f).''.

     SEC. 5. INSPECTIONS.

       (a) Authority of Secretary.--Section 8(a) (29 U.S.C. 
     657(a)) is amended by striking paragraph (2) and inserting 
     the following:
       ``(2) to inspect and investigate during regular working 
     hours and at other reasonable times, and within reasonable 
     limits and in a reasonable manner, any such place of 
     employment and all pertinent conditions, structures, 
     machines, apparatus, devices, equipment, and materials in 
     such place of employment.

     In conducting inspections and investigations under paragraph 
     (2), the Secretary may question any such employer, owner, 
     operator, agent or employee. An interview of an employee by 
     the Secretary may only be in private with the consent of the 
     employee.''.
       (b) Recordkeeping.--
       (1) General maintenance.--The first sentence of section 
     8(c)(1) (29 U.S.C. 657(c)(1)) is amended to read as follows: 
     ``Each employer shall make, keep and preserve, and make 
     available, upon reasonable request and within reasonable 
     limits, to the Secretary or the Secretary of Health and Human 
     Services, such records regarding the activities of the 
     employer relating to this Act as the Secretary, in 
     cooperation with the Secretary of Health and Human Services, 
     may prescribe by regulation as necessary or appropriate for 
     the enforcement of this Act or for developing information 
     regarding the causes and prevention of occupational accidents 
     and illnesses.''.
       (2) Records or reports on injuries.--Section 8(c) (29 
     U.S.C. 657(c)) is amended by adding at the end the following:
       ``(4) In prescribing regulations under this subsection, the 
     Secretary may not require employers to maintain records of, 
     or to make reports on, injuries that do not involve lost work 
     time or that involve employees of other employers.
       ``(5) In prescribing regulations requiring employers to 
     report work-related deaths and multiple hospitalizations, the 
     Secretary shall include provisions that provide an employer 
     at least 24 hours in which to make the report.''.
       (c) 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 
     promulgated under this Act exists in the place of employment 
     of the employee that threatens physical harm, or that an 
     imminent danger exists in the place of the employment of the 
     employee, may request an inspection by providing notice to 
     the Secretary or an authorized representative of the 
     Secretary of the violation or danger.
       ``(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 that the alleged 
     violation or danger described in this subparagraph has been 
     brought to the attention of the employer and the employer has 
     refused to take any action to correct the alleged violation 
     or danger.

[[Page S2436]]

       ``(C)(i) The notice under subparagraph (A) shall be signed 
     by the employee or representative of the employee and a copy 
     of the notice shall be provided to the employer or the agent 
     of the employer no later than the time of arrival of an 
     occupational safety and health agency inspector to conduct 
     the inspection.
       ``(ii) Upon the request of the employee providing the 
     notice under subparagraph (A), the name of the employee and 
     the names of individual employees referred to in the notice 
     shall not appear in the copy or on any record published, 
     released, or made available pursuant to subsection (i), 
     except that the name of the employee and the names of 
     individual employees shall not be privileged from discovery 
     in a contested case.
       ``(D) The Secretary may not make an inspection under this 
     subsection except upon request by an employee or a 
     representative of an employee.
       ``(E) If upon receipt of the notice under subparagraph (A), 
     the Secretary determines that the employee or the 
     representative of the employee has brought the alleged 
     violation or danger to the attention of the employer and the 
     employer has refused to take corrective action, and that 
     there are reasonable grounds to believe the alleged violation 
     or danger still exists, the Secretary shall make a special 
     inspection in accordance with this subsection not later than 
     30 days after the receipt of the notice under subparagraph 
     (A). The special inspection shall be conducted for the 
     limited purpose of determining whether the alleged violation 
     or danger exists.
       ``(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 described in 
     paragraph (1)(A) exists, the Secretary shall notify the 
     complaining employee or the representative of the employee of 
     the determination and, upon request by the employee or the 
     representative of the employee, shall provide a written 
     statement of the reasons for the determination.''.
       (d) Training and Enforcement.--Section 8 (29 U.S.C. 657) is 
     amended--
       (1) by redesignating subsection (g) as subsection (j); and
       (2) by inserting after subsection (f) the following:
       ``(g) Inspections conducted under this section shall be 
     conducted by at least 1 person who has training in, and is 
     knowledgeable of, the industry or types of hazards being 
     inspected.
       ``(h)(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) an employer who is engaged in a farming operation 
     that does not maintain a temporary labor camp and employs 50 
     or fewer employees; or
       ``(B) an employer of not more than 50 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 an employer described in subparagraph 
     (B) of paragraph (1), such paragraph shall not be construed 
     to prohibit the Secretary, with respect to the employer, 
     from--
       ``(A) providing under this Act consultations, technical 
     assistance, and educational and training services;
       ``(B) conducting under this Act surveys and studies;
       ``(C) conducting inspections or investigations in response 
     to employee complaints, issuing citations for violations of 
     this Act found during an inspection, and assessing a penalty 
     for the violations that are not corrected within a reasonable 
     abatement period;
       ``(D) taking any action authorized by this Act with respect 
     to imminent dangers;
       ``(E) 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 hospitalization of at 
     least 3 employees and taking any action pursuant to an 
     investigation of such report; and
       ``(F) taking any action authorized by this Act with respect 
     to a complaint of discrimination against employees for 
     exercising their rights under this Act.
       ``(i) Any records or other information created by or for an 
     employer for the purpose of conducting safety and health 
     inspections, audits, or reviews not required by this Act 
     shall not be required to be disclosed by the employer or the 
     agent of the employer in any inspection, investigation, or 
     enforcement proceeding conducted pursuant to this Act.''.

     SEC. 6. VOLUNTARY COMPLIANCE.

       (a) Program.--The Occupational Safety and Health Act of 
     1970 (21 U.S.C. 651 et seq.) is amended by inserting after 
     section 8 the following:

     ``SEC. 8A. VOLUNTARY COMPLIANCE.

       ``(a) In General.--The Secretary shall by regulation 
     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 with respect to a place 
     of employment maintained by the 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) Requirements for Exemption.--In order to qualify for 
     the exemption provided under subsection (b), an employer 
     shall provide to the Secretary evidence that--
       ``(1) the place of employment of the employer or conditions 
     of employment have, during the preceding year, been reviewed 
     or inspected under--
       ``(A) a consultation program provided by any State agency 
     relating to occupational safety and health;
       ``(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 any 
     other person certified by the Secretary for purposes of 
     providing workplace consultations; or
       ``(2) the place of employment has an exemplary safety 
     record and the employer maintains a safety and health program 
     for the workplace that--
       ``(A) includes--
       ``(i) procedures for assessing hazards to the employees of 
     the employer that are inherent to the operations or business 
     of the employer;
       ``(ii) procedures for correcting or controlling the hazards 
     in a timely manner based on the severity of the hazard; and
       ``(iii) employee participation in the program including, at 
     a minimum--

       ``(I) regular consultation between the employer and the 
     nonsupervisory employees of the employer regarding safety and 
     health issues; and
       ``(II) 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

       ``(B) that requires that participating nonsupervisory 
     employees of the employer have training or expertise on 
     safety and health issues consistent with the responsibilities 
     of the employees.

     A program under subparagraph (A) or (B) of paragraph (1) 
     shall include methods that ensure that serious hazards 
     identified in the consultation are corrected within an 
     appropriate time.
       ``(d) Certification.--The Secretary may require that an 
     employer in order to claim the exemption under subsection (b) 
     provides certification to the Secretary, and notice to the 
     employees of the employer, of the eligibility of the employer 
     for an exemption.''.
       (b) Definition.--Section 3 (29 U.S.C. 652) is amended by 
     adding at the end the following:
       ``(15) The term `exemplary safety record' means that an 
     employer has had, in the most recent annual reporting of the 
     employer required by the Occupational Safety and Health 
     Administration, 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. 7. 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) 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 employees by 
     the employer; and
       ``(3) the failure of employees to observe work rules led to 
     the violation.
       ``(e) A citation issued under subsection (a) to an employer 
     that violates the requirements 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. 8. THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

       (a) Procedure for Enforcement.--
       (1) Notification.--The first sentence of section 10(b) (29 
     U.S.C. 659(b)) is amended to read as follows: ``If the 
     Secretary has reason to believe an employer has failed to 
     correct a violation, for which a citation has been issued, 
     within the period permitted for the correction of the 
     violation, the Secretary

[[Page S2437]]

     shall notify the employer by certified mail of such failure 
     and of the penalty proposed to be assessed under section 17 
     by reason of such failure, and that the employer has 15 
     working days after the receipt of such a notification to 
     notify the Secretary that the employer desires to contest the 
     notification of the Secretary or the proposed assessment of 
     penalty. The period for the correction of the violation 
     described in the first sentence shall not begin to run until 
     the time for contestation has expired or the entry of a final 
     order by the Commission in a contested case initiated by the 
     employer in good faith and not solely for delay or avoidance 
     of penalties.''.
       (2) Burden of proof.--Section 10 (29 U.S.C. 659) is amended 
     by adding at the end the following:
       ``(d) In all hearings before the Commission relating to a 
     contested citation, there shall be no presumption of a 
     violation of standard, or an existence of a hazard, under 
     this Act. In such cases, the Secretary shall have the burden 
     of proving by a preponderance of the evidence--
       ``(1) the existence of a violation;
       ``(2) that the violation for which the citation was issued 
     constitutes a realistic hazard to the safety and health of 
     the affected employees;
       ``(3) that there is a likelihood that the hazard will 
     result in employee injury;
       ``(4) that the employer knew or with the exercise of 
     reasonable diligence should have known of the hazard and 
     violation; and
       ``(5) that a technically and economically feasible method 
     of compliance exists.''.
       (b) Judicial Review.--Section 11(a) (29 U.S.C. 660(a)) is 
     amended by inserting after ``conclusive.'' at the end of the 
     sixth sentence the following: ``The court shall make its own 
     determination as to questions of law, including the 
     reasonable interpretation of standards promulgated under this 
     Act, and shall not accord deference to either the Commission 
     or the Secretary.''.

     SEC. 9. DISCRIMINATION.

       (a) Complaint.--Section 11(c)(2) (29 U.S.C. 660(c)(2)) is 
     amended to read as follows:
       ``(2)(A)(i) Any employee who believes that such employee 
     has been discharged or otherwise discriminated against by the 
     employer of the employee in violation of this subsection may, 
     within 30 days after such violation occurs, file a complaint 
     with the Secretary alleging the discrimination.
       ``(ii) A complaint may not be filed under clause (i) after 
     the expiration of the 30-day period described in such clause.
       ``(B)(i) Upon receipt of a complaint under subparagraph (A) 
     and as the Secretary considers appropriate, the Secretary 
     shall conduct an investigation.
       ``(ii) If upon such investigation, the Secretary determines 
     that the provisions of this subsection have been violated, 
     the Secretary shall attempt to eliminate the alleged 
     violation by informal methods.
       ``(iii) Nothing stated or done, during the use of the 
     informal methods applied under clause (ii) may be made public 
     by the Secretary or used as evidence in any subsequent 
     proceeding.
       ``(iv) The Secretary shall make a determination concerning 
     the complaint as soon as possible and, in any event, not 
     later than 90 days after the date of the filing of the 
     complaint.
       ``(C) If the Secretary is unable to resolve the alleged 
     violation through informal methods, the Secretary shall 
     notify the parties in writing that conciliation efforts have 
     failed.
       ``(D)(i) Not later than 90 days after the date on which the 
     Secretary notifies the parties under subparagraph (C) in 
     writing that conciliation efforts have failed, the Secretary 
     may bring an action in any appropriate United States district 
     court against an employer described in subparagraph (A).
       ``(ii) The employer against whom an action under clause (i) 
     is brought may demand that the issue of discrimination be 
     determined by jury trial.
       ``(E) Upon a showing of discrimination in an action brought 
     under subparagraph (D)(i), the Secretary may seek, and the 
     court may award, any and all of the following types of 
     relief:
       ``(i) An injunction to enjoin a continued violation of this 
     subsection.
       ``(ii) Reinstatement of the employee to the same or 
     equivalent position.
       ``(iii) Reinstatement of full benefits and seniority 
     rights.
       ``(iv) Compensation for lost wages and benefits.
       ``(F) This subsection shall be the exclusive means of 
     securing a remedy for any aggrieved employee.''.
       (b) Access to Records.--Section 11(c)(3) (29 U.S.C. 
     660(c)(3)) is amended to read as follows:
       ``(3) Any records of the Secretary, including the files of 
     the Secretary, relating to investigations and enforcement 
     proceedings pursuant to this subsection shall not be subject 
     to inspection and examination by the public while such 
     inspections and proceedings are pending in the United States 
     district court.''.

     SEC. 10. INJUNCTION AGAINST IMMINENT DANGER.

       Section 13 (29 U.S.C. 662) is amended--
       (1) by striking subsection (c);
       (2) by redesignating subsections (a) and (b) as subsections 
     (b) and (c), respectively; and
       (3) by inserting before subsection (b) (as so redesignated 
     by paragraph (2)) the following:
       ``(a)(1)(A)(i) If the Secretary determines, on the basis of 
     an inspection or investigation under this section, that a 
     condition or practice in a place of employment is such that 
     an imminent danger to safety or health exists that could 
     reasonably be expected to cause death or serious physical 
     harm or permanent impairment of the health or functional 
     capacity of employees if not corrected immediately or before 
     the imminence of such danger can be eliminated through the 
     enforcement procedures otherwise provided by this Act, the 
     Secretary--
       ``(I) may inform the employer, and provide notice, by 
     posting at the place of employment, to the affected employees 
     of the danger; and
       ``(II) shall request the employer that the condition or 
     practice be corrected immediately or that the affected 
     employees be immediately removed from exposure to such 
     danger.
       ``(ii) A notice under clause (i) shall be removed by the 
     Secretary from the place of employment not later than 72 
     hours after the notice was first posted unless a court in a 
     proceeding under subsection (c) requires that the notice be 
     maintained.
       ``(B) The Secretary shall not prevent the continued 
     activity of the employees of the employer whose presence in 
     the place of employment is necessary--
       ``(i) to avoid, correct, or remove the imminent danger;
       ``(ii) to maintain the capacity of a continuous process 
     operation to resume the normal operations of the employer 
     without a cessation of the operations; or
       ``(iii) to permit the cessation of the operations of the 
     employer to be accomplished in a safe and orderly manner, 
     where the cessation of the operations is necessary.
       ``(2) No employer shall discharge, or in any manner 
     discriminate against any employee, because the employee has 
     refused to perform a duty that has been identified as the 
     source of an imminent danger by a notice posted pursuant 
     to paragraph (1).''.

     SEC. 11. SMALL BUSINESS ASSISTANCE AND TRAINING.

       Section 16 (29 U.S.C. 665) is amended--
       (1) by inserting ``(a)'' after ``16.''; and
       (2) by adding at the end the following:
       ``(b) The Secretary shall publish and make available to 
     employers a model injury prevention program that if completed 
     by the employer shall be deemed to meet the requirement for 
     an exemption under section 8A or a reduction in penalty under 
     section 17(a)(3)(B).
       ``(c) The Secretary shall establish and implement a program 
     to provide technical assistance and consultative services for 
     employers and employees, either directly or by grant or 
     contract, concerning work site safety and health and 
     compliance with this Act. The assistance shall be targeted at 
     small employers and the most hazardous industries.
       ``(d) Consultative services shall be provided to employers 
     through cooperative agreements between the States and the 
     Occupational Safety and Health Administration. The 
     consultative services provided under a cooperative agreement 
     under this subsection shall be the same type of services 
     described in part 1908 of title 39 of the Code of Federal 
     Regulations.
       ``(e) Not less than one-fourth of the annual appropriation 
     made to the Secretary to carry out this Act shall be expended 
     for the activities described in this section.''.

     SEC. 12. PENALTIES.

       (a) In General.--Section 17 (29 U.S.C. 666) is amended--
       (1) by striking subsections (a), (b), (c), (f), (i), (j), 
     and (k);
       (2) by redesignating subsections (d), (e), (g), (h), and 
     (l) as subsections (b), (c), (d), (e), and (f), respectively; 
     and
       (3) by inserting after ``17.'' the following:
       ``(a)(1) Any employer who violates the requirements of 
     section 5, any standard, rule, or order promulgated pursuant 
     to section 6, or any other regulation promulgated under this 
     Act may be assessed a civil penalty of not more than $7,000. 
     The Commission shall have authority to assess all civil 
     penalties provided for in this section, giving due 
     consideration to the appropriateness of the penalty with 
     respect to--
       ``(A) the size of the employer;
       ``(B) the number of employees exposed to a 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; and
       ``(G) the effect of the penalty on the ability of the 
     employee to stay in business.
       ``(2) In assessing penalties for violations under this 
     section, the Commission shall have authority to determine 
     whether violations should be classified as willful, repeated, 
     serious, other than serious, or de minimus. Regardless of the 
     classification of a violation, there shall be only 1 penalty 
     assessed for each violation. The Commission may not enhance 
     the penalty based on the number of employees exposed to the 
     violation or the number of instances of the same violation.
       ``(3)(A) A penalty assessed under paragraph (1) shall be 
     reduced by 25 percent in any case in which the employer--
       ``(i) maintains a written safety and health program for the 
     work site where the violation, for which the penalty was 
     assessed, occurred; or

[[Page S2438]]

       ``(ii) shows that the work site where the violation, for 
     which the penalty was assessed, occurred has an exemplary 
     safety record.
       ``(B) If the employer maintains a program described in 
     subparagraph (A)(i) and has the record described in 
     subparagraph (A)(ii), the penalty shall be reduced by 50 
     percent.
       ``(4) No penalty shall be assessed against an employer for 
     a violation other than a violation previously cited by the 
     Secretary, a violation that creates an imminent danger, a 
     violation that has caused death, or a willful violation that 
     has caused serious injury to an employee, unless the 
     Secretary provides--
       ``(A) the employer with a written notification of the 
     violation; and
       ``(B) the employer a reasonable time (but not less than 10 
     days after the receipt by the employer of the written 
     notification) to correct the violation.''.
       (b) Criminal Penalties.--Section 17(c) (29 U.S.C. 666(c)) 
     (as so redesignated by subsection (a)) is amended by adding 
     at the end the following: ``No employer shall be subject to 
     any State or Federal criminal prosecution arising out of a 
     workplace accident other than under this subsection.''.

     SEC. 13. TRANSFER OF CERTAIN OCCUPATIONAL SAFETY AND HEALTH 
                   FUNCTIONS.

       (a) Transfer of Functions; Repeal.--
       (1) National institute of occupational safety and health.--
     The functions and authorities provided to the National 
     Institute of Occupational Safety and Health under section 22 
     of the Occupational Safety and Health Act of 1970 (29 U.S.C. 
     671) are transferred to the Secretary of Labor.
       (2) Secretary of health and human services.--The 
     responsibilities and authorities of the Secretary of Health 
     and Human Services under sections 20, 21, and 22 of the 
     Occupational Safety and Health Act of 1970 (29 U.S.C. 669, 
     670, and 671) are transferred to the Secretary of Labor.
       (3) Repeal.--Section 22 (29 U.S.C. 671) is repealed.
       (b) Additional Functions.--In carrying out the functions 
     transferred under subsection (a), the Secretary of Labor 
     shall take such actions as are necessary to avoid duplication 
     of programs and to maximize training, education, and research 
     under the Occupational Safety and Health Act of 1970 (29 
     U.S.C. 671 et seq.).
       (c) References.--
       (1) In general.--Each reference in any other Federal law, 
     Executive order, rule, regulation, or delegation of 
     authority, or any document of or relating to--
       (A) the head of the transferred office, or the Secretary of 
     Health and Human Services, with regard to functions 
     transferred under subsection (a), shall be deemed to refer to 
     the Secretary of Labor; and
       (B) a transferred office with regard to functions 
     transferred under subsection (a), shall be deemed to refer to 
     the Department of Labor.
       (2) Definition.--For the purpose of this subsection, the 
     term ``office'' includes any office, administration, agency, 
     institute, unit, organizational entity, or component thereof.
       (d) Conforming Amendments.--Not later than 180 days after 
     the effective date of this Act, if the Secretary of Labor 
     determines (after consultation with the appropriate 
     committees of Congress and the Director of the Office of 
     Management and Budget) that technical and conforming 
     amendments to Federal statutes are necessary to carry out the 
     changes made by this section, the Secretary of Labor shall 
     prepare and submit to Congress recommended legislation 
     containing the amendments.

     SEC. 14. ECONOMIC IMPACT ANALYSIS.

       The Secretary of Labor shall conduct a continuing 
     comprehensive analysis of the costs and benefits of each 
     standard in effect under section 6 of the Occupational Safety 
     and Health Act of 1970 (29 U.S.C. 655). The Secretary shall 
     report the results of the analysis to Congress upon the 
     expiration of the 2-year period beginning on the date of 
     enactment of this Act and every 2 years thereafter.

     SEC. 15. LABOR RELATIONS.

       (a) Definitions.--Paragraph (5) of section 2 of the 
     National Labor Relations Act (29 U.S.C. 152(5)) is amended by 
     adding at the end the following: ``The term does not include 
     a safety committee that is comprised of an employer and the 
     employees of the employer and that is jointly established by 
     the employer and the employees of the employer, or by the 
     employer and a labor organization representing the employees 
     of the employer, to carry out efforts to reduce injuries and 
     disease arising out of employment.''.
       (b) Unfair Labor Practices.--Section 8(a)(2) of the 
     National Labor Relations Act (29 U.S.C. 158(a)(2)) is amended 
     by inserting before the semicolon at the end the following: 
     ``: Provided further, That it shall not constitute an unfair 
     practice under this paragraph for an employer and the 
     employees of the employer, or for an employer and a labor 
     organization representing the employees of the employer, to 
     jointly establish a safety committee in which the employer 
     and the employees of the employer carry out efforts to reduce 
     injuries and disease arising out of employment''.
                                 ______