[Congressional Record Volume 143, Number 67 (Tuesday, May 20, 1997)]
[Senate]
[Pages S4748-S4753]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ENZI (for himself, Mr. Allard, Mr. Burns, Mr. Craig, Mr. 
        Hagel, Mr. McConnell, Mr. Roberts, Mr. Sessions, Mr. Thomas and 
        Mr. Hutchinson):
  S. 765. 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; to the Committee on Labor and Human Resources.


                 THE SAFETY AND HEALTH ADVANCEMENT ACT

  Mr. ENZI. Mr. President, I am very pleased and proud to rise and 
speak in support of S. 765, the Safety and Health Advancement Act that 
I have sponsored.
  I thank all of the people who have been involved in the process of 
coming up with an OSHA modernization bill. You notice I mentioned 
modernization, not reform.
  There have been a lot of people involved in this. My colleagues, my 
staff members, and over 50 organizations have been involved in 
reviewing suggestions that we have had for modernizing the OSHA 
process.
  Over the last 6 years, there have been bills introduced by both 
Republicans and Democrats that wound up on the great scrap heap of 
unfinished business because they have been put in to make a statement, 
a political statement.
  For every time that a bill is put into committee, there is a 
committee report, an 8\1/2\ by 5\1/2\ inch booklet that lists a 
paragraph-by-paragraph analysis of the bill, the majority opinion, the 
minority opinion, every amendment that has been suggested for the bill, 
and how people voted on it.
  We have gone back through the last 6 years of those bills, and we 
found on the issues that there seem to be common ground, and we have 
put those in the bill. We have looked for the issues that were 
conscientious that were dividing, and we found some new approaches for 
some of those things.
  We have not been able to address everything. But we have a bill that 
will help to move small business forward, that will give small business 
a better chance to have safety in the workplace for their workers.
  That is the main point of this bill.
  Again, I thank all of the people who have helped me on it, and I look 
forward to working with everybody on what I think will be a very 
reasonable approach that can go through both bodies and help out the 
workers in the workplace.

  For 6 year's Members on both sides of the aisle have seen the need 
for modernization. Unfortunately, its been approached each year as 
reform--and often as drastic reform. Big business and big union have 
seen the bills as an opportunity to make a statement--a political 
statement. The workers and small business have needed some 
clarification and a lot of help that has gotten lost in the statements. 
The issue of workplace safety and health is extremely important to a 
healthy America. Advancing safety and health in the American workplace 
is a matter of great importance and it must be considered in a serious 
and rational manner by Congress, by the Occupational Safety and Health 
Administration, by employers, and yes, by employees too. This bill is 
overdue, common sense legislation.
  When I began my service on the Senate Labor and Human Resources 
Committee, I was surprised to discover the volume of documentation and 
resources available to us and our staffs. Each time a bill is reported 
out of committee, a 5\1/2\- by -8\1/2\ booklet is made available to us 
that lists every detail about that bill--a luxury I never had when I 
served in the Wyoming State Legislature. Included in that booklet is a 
paragraph by paragraph analysis of the bill, with a majority and a 
minority opinion on each section. It shows every amendment, discusses 
them at length and reports who voted for and against them in committee. 
With this abundance of committee reports, I felt like a kid in a candy 
store. I just picked up 6 year's worth of OSHA bills and began reading. 
Surprisingly enough, I found that the things that business and labor 
needed to have done were pretty commonly agreed upon as necessary. Just 
the politicized statements separated the two sides.
  The fate of each bill was determined when such statements reared 
their ugly heads and squelched any chance of improving the safety and 
health of

[[Page S4749]]

America's workplaces. Each year, legislators in the House and Senate 
introduce bills that appeal to a wide variety of special interests--
setting the stage for a lot of mudslinging. These bills contained good 
ideas, but they eventually toppled from a barrage of political 
attacks--tossing them all onto the great scrap heap of Congress' 
unfinished business. It just goes to show that people who sling mud, 
lose ground. I found that both big businesses and big unions have made 
a lot of statements over the years, but statements don't become law and 
they certainly don't change things. Good legislation becomes law. It is 
time that we tuck the statements back into our coat pockets and start 
passing some common sense legislation that advances the safety and 
health of the American workplace.
  We all want a healthy and safe workplace. Legislation should 
therefore revolve around not what we want, but how to get there in a 
manner that is fair and equitable to all. There is no room for politics 
in the arena of human life. For this reason, I spent the last 14 weeks 
pouring the foundation for a new, comprehensive OSHA bill. This 
foundation does not consist of cement, but something stronger--the 
thoughts, suggestions and good ideas of employees, employers, and the 
individuals that govern them. I want to be clear that this bill does 
not include all the concerns of every interested party, but I do 
believe that it constitutes an important first step.

  This bill sticks to a theme-- ``the advancement of safety and health 
in the workplace.'' I am proud to say that it has been crafted to 
promote and enhance workplace safety and health--rather than dismantle 
it. We are addressing an issue that affects people from all walks of 
life. It is essential that we take each step with care.
  To be successful and effective, a well-crafted bill must provide 
incentives for employers and employees to act more responsibly. We need 
to make the profit motive work for worker safety, not against it. This 
spirit of cooperation must overpower political polarization if true 
improvements are to be achieved. OSHA must recognize that the vast 
majority of employers are not heartless and cruel. Having played the 
wage payer role for over 26 years, I take great offense when employers 
are characterized as Ebenezer Scrooges or Simon Legrees. The majority 
of employers cherish their most valuable assets--their employees. It is 
truly misleading and deceptive for anyone to say otherwise. For without 
the employee, management will ultimately have no staff, no profits--and 
no business. Watching out for employees is just good business
  When the Occupational Safety and Health Act was enacted 27 years ago, 
its intended purpose was to make the workplace free from ``recognized 
hazards that are causing, or likely to cause death or serious physical 
harm to . . . employees.'' As is the case with many programs 
established by Congress over the years, OSHA strayed from its original 
mission of protecting people from occupational safety and health 
hazards through preventative measures. The focus has instead been 
heavily weighted toward and concentrating on penalties and enforcement. 
OSHA should retain the ability to punish employers who don't embrace 
workplace safety and health, but it should reward those who do. The 
carrot and stick approach has always worked before, but OSHA prefers 
using the stick by itself--and they rarely walk softly. I want to be 
clear that this bill does not dismantle OSHA's enforcement 
capabilities. That approach has been tried time and time again. But, 
enforcement alone cannot ensure the safety of our Nation's workplaces 
and the health of our working population. America would be better 
served by an OSHA that places a greater emphasis on promoting employers 
and employees working together and this bill would strike that balance.
  To continue the course set by Congress' original intent back in 1970, 
consultative services must be drastically expanded. My bill calls for 
that. Studies have shown that many sites where serious workplace 
accidents have occurred were not inspected by Federal OSHA inspectors 
for several years prior to the accident. This lack of attention to 
potential problem areas is due in part to an overemphasis on 
enforcement. If just the inspectors are working on safety, you can't 
possibly have enough inspectors. Everyone has to be involved. My 
legislation will allow OSHA greater flexibility in allocating its 
resources so it can give the most serious workplace problems its 
highest priority and most careful attention.
  This bill advances safety and health by allowing employers to 
actively promote employee/employer discussions concerning occupational 
safety and health hazards. Voluntary compliance by employers would be 
encouraged as part of the solution, not as part of the problem--as part 
of the prevention, not as part of the penalty. Employers would have the 
option of implementing an alcohol and substance abuse testing program 
in order to ensure a safe workplace. I have had the opportunity to see 
first hand the benefits of this type of program. I have been tested and 
given tests and I know about validity and dignity. Employees would be 
held accountable for misconduct in a site that has been determined by 
OSHA to be in compliance with existing regulations. Employees have the 
ultimate control as to whether safety toes, hard hats or safety goggles 
are worn. Employers would receive incentives from OSHA for utilizing 
the services of third party consultants. Moreover, continuing education 
and professional certification for OSHA consultants and inspectors 
would be required to ensure that the rapid advancement of technology 
doesn't surpass OSHA's ability to identify occupational safety and 
health hazards in the workplace.

  Not only have 6 years of OSHA proposals been reviewed, Meetings have 
been held with over 50 interested groups from the National Federation 
of Independent Businesses to the AFL-CIO. Contact has been made and 
some explanation given to every member of the Labor Committee. All 
suggestions received have been considered. Those that meet the goal of 
safety and health improvement without appearing contentious have been 
included. I am looking forward to a bipartisan effort to create the 
kind of workplace we want and need in America. This bill doesn't call 
for radical change, but it does start the progress and the process to 
safety. It makes changes small business can't wait any longer for.
  The Safety and Health Advancement Act represents a clean, fresh start 
to addressing the problems that affect OSHA, employers and employees. I 
am quite eager to work with each of my distinguished colleagues as this 
issue winds its way through the legislative process. By working 
together, we can return OSHA to its original course as envisioned by 
Congress when it crafted the Occupational Safety and Health Act of 
1970. I urge my colleagues to give fair consideration to this bill and 
I welcome your support.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 765

       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 ``Safety and 
     Health Advancement 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) (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 in the effort to ensure safe and 
     healthful working conditions for employees.''.

     SEC. 3. EMPLOYEE AND EMPLOYER PARTICIPATION PROGRAMS.

       Section 4 (29 U.S.C. 653) is amended by adding at the end 
     the following:
       ``(c)(1) In order to further carry out the purpose of this 
     Act to encourage employers and employees in their efforts to 
     reduce occupational safety and health hazards, employers may 
     establish employer and employee participation programs which 
     exist for the sole purpose of addressing safe and healthful 
     working conditions.
       ``(2) An entity created under a program described in 
     paragraph (1) 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

[[Page S4750]]

     purposes of sections 1 and 2 of the Railway Labor Act (45 
     U.S.C. 151 and 151a).
       ``(3) Nothing in this subsection 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. 4. ESTABLISHMENT OF SPECIAL ADVISORY COMMITTEE.

       Section 7 (29 U.S.C. 656) is amended by adding at the end 
     the following:
       ``(d)(1) Not later than 6 months after the date of 
     enactment of this section, the Secretary shall establish an 
     advisory committee (pursuant to the Federal Advisory 
     Committee Act (5 U.S.C. App)) to carry the duties described 
     in paragraph (3).
       ``(2) The advisory committee shall be composed of--
       ``(A) 3 members who are employees;
       ``(B) 3 members who are employers;
       ``(C) 2 members who are members of the general public; and
       ``(D) 1 member who is a State official from a State plan 
     State.

     Each member of the advisory committee shall have expertise in 
     workplace safety and health as demonstrated by the 
     educational background of the member.
       ``(3) The advisory committee shall advise and make 
     recommendations to the Secretary with respect to the 
     establishment and implementation of a consultation services 
     program under section 8A.''.

     SEC. 5. 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) Establishment of Program.--
       ``(1) In general.--Not later than 12 months after the date 
     of enactment of this section, the Secretary shall establish 
     and implement, by regulation, a program that certifies 
     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.--Each of the following individuals shall 
     be eligible to be qualified under the program:
       ``(A) An individual licensed by a State authority as a 
     physician, industrial hygienist, professional engineer, 
     safety engineer, safety professional, or occupational 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 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;
       ``(3) Geographical scope of consultation services.--An 
     individual certified under the program may provide 
     consultation services in any State.
       ``(b) Safety and Health Registry.--The Secretary shall 
     develop and maintain a registry that includes all individuals 
     that are certified under the program to provide the 
     consultation services described in subsection (a) and shall 
     publish and make such registry readily available to the 
     general public.
       ``(c) Disciplinary Actions.--
       ``(1) In general.--The Secretary may revoke the status of 
     an individual certified under subsection (a) if the Secretary 
     determines that the individual--
       ``(A) has failed to meet the requirements of the program; 
     or
       ``(B) has committed malfeasance, gross negligence, or fraud 
     in connection with any consultation services provided by the 
     certified individual.
       ``(d) Consultation Services.--
       ``(1) Scope of consultation services.--
       ``(A) In general.--The consultation services described in 
     subsection (a), and provided by an individual certified under 
     the program, shall include an evaluation of the workplace of 
     an employer to determine if the employer is in compliance 
     with the requirements of this Act, including any regulations 
     promulgated pursuant to this Act.
       ``(B) Non-fixed work sites.--With respect to the employees 
     of an employer who do not work at a fixed site, the 
     consultation services described in subsection (a), and 
     provided by an individual certified under the program, shall 
     include an evaluation of the safety and health program of the 
     employer to determine if the employer is in compliance with 
     the requirements of this Act, including any regulations 
     promulgated under this Act.
       ``(2) Consultation report.--Not later than 10 business days 
     after an individual certified under the program provides the 
     consultation services described in subsection (a) to an 
     employer, the individual shall prepare and submit a written 
     report to the employer that includes an identification of any 
     violations of this Act and requirements with respect to 
     corrective measures the employer needs to carry out in order 
     for the workplace of the employer to be in compliance with 
     the requirements of this Act.
       ``(3) Reinspection.--Not later than 30 days after an 
     individual certified under the program submits a report to an 
     employer under paragraph (2), or on a date agreed on by the 
     individual and the employer, the individual shall reinspect 
     the workplace of the employer to verify that any occupational 
     safety or health violations identified in the report have 
     been corrected and the workplace of the employer is in 
     compliance with this Act. If, after such reinspection, the 
     individual determines that the workplace is in compliance 
     with the requirements of this Act, the individual shall 
     provide the employer a declaration of compliance.
       ``(4) Guidelines.--The Secretary, in consultation with an 
     advisory committee established in section (7)(d), shall 
     develop model guidelines for use in evaluating a workplace 
     under paragraph (1).
       ``(e) Access to Records.--Any records relating to 
     consultation services (as described in subsection (a)) 
     provided by an individual qualified under the program shall 
     not be admissible in a court of law or administrative 
     proceeding against the employer except that such records may 
     be used as evidence for purposes of a disciplinary action 
     under subsection (c).
       ``(f) Exemption.--
       ``(1) In general.--If an employer enters into a contract 
     with an individual certified under the program, to provide 
     consultation services described in subsection (a), and 
     receives a declaration of compliance under subsection (d)(3), 
     the employer shall be exempt from the assessment of any civil 
     penalty under section 17 for a period of 2 years after the 
     date the employer receives the declaration.
       ``(2) Exceptions.--Paragraph (1) shall not apply--
       ``(A) if the employer involved has not made a good faith 
     effort to remain in compliance as required under the 
     declaration of compliance; or
       ``(B) to the extent that there has been a fundamental 
     change in the hazards of the workplace.
       ``(g) Definition.--In this section, the term `program' 
     means the program established by the Secretary under 
     subsection (a).''.

     SEC. 6. INDEPENDENT SCIENTIFIC PEER REVIEW.

       Section 6(b) (29 U.S.C. 655(b)(1)) is amended--
       (1) by striking: ``(4) Within'' and inserting: ``(4)(A) 
     Within''; and
       (2) by adding at the end the following:
       ``(B)(i) Prior to issuing a final standard under this 
     paragraph, the Secretary shall submit the draft final 
     standard and a copy of the administrative record to the 
     National Academy of Sciences for review in accordance with 
     clause (ii).
       ``(ii)(I) The National Academy of Sciences shall appoint an 
     independent Scientific Review Committee.
       ``(II) The Scientific Review Committee shall conduct an 
     independent review of the draft final standard and the 
     scientific literature and make written recommendations with 
     respect to the draft final standard to the Secretary, 
     including recommendations relating to the appropriateness and 
     adequacy of the scientific data, scientific methodology, and 
     scientific conclusions, adopted by the Secretary.
       ``(III) If the Secretary decides to modify the draft final 
     standard in response to the recommendations provided by the 
     Scientific Review Committee, the Scientific Review Committee 
     shall be given an opportunity to review and comment on the 
     modifications before the final standard is issued.
       ``(IV) The recommendations of the Scientific Review 
     Committee shall be published with the final standard in the 
     Federal Register.''.

     SEC. 7. CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION 
                   FOR CERTAIN OCCUPATIONAL SAFETY AND HEALTH 
                   ADMINISTRATION PERSONNEL.

       Section 8 (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) meet the eligibility requirements prescribed 
     under subsection (a)(2) or (c).
       ``(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. 8. THE USE OF ALTERNATIVE METHODS AS AN AFFIRMATIVE 
                   DEFENSE.

       Section 9 (29 U.S.C. 658) is amended by adding at the end 
     the following:
       ``(d) A citation issued under subsection (a) to an employer 
     who violates section 5, or any standard, rule, or order 
     promulgated pursuant to section 6, or any other regulation 
     promulgated under this Act shall be vacated if such employer 
     demonstrates that the employees of such employer were 
     protected by alternative methods that are equally or more 
     protective of the safety and health of the employees than the 
     methods required by such standard, rule, order, or regulation 
     in the factual circumstances underlying the citation.''.

     SEC. 9. EMPLOYEE RESPONSIBILITY.

       The Occupational Safety and Health Act of 1970 (29 U.S.C. 
     651 et seq.) is amended by inserting after section 10 the 
     following:


                       ``employee responsibility

       ``Sec. 10A. (a) Notwithstanding any other provision of this 
     Act, an employee who willfully violates any requirement of 
     section 5 or any standard, rule, or order promulgated 
     pursuant to section 6, or any regulation prescribed pursuant 
     to this Act, may be assessed a civil penalty of up to $500, 
     but not less than $50 for each violation.

[[Page S4751]]

       ``(b) If, upon inspection and investigation, the Secretary 
     or the authorized representative of the Secretary believes 
     that an employee of an employer has violated any requirement 
     of section 5 or any standard, rule, or order promulgated 
     pursuant to section 6, or any regulation prescribed pursuant 
     to this Act, the Secretary shall within 60 days issue a 
     citation to the employee. Each citation shall be in writing 
     and shall describe with particularity the nature of the 
     violation, including a reference to the provision of this 
     Act, standard, rule, regulation, or order alleged to have 
     been violated. No citation may be issued under this section 
     after the expiration of 6 months following the occurrence of 
     any violation.
       ``(c) The Secretary shall notify the employee by certified 
     mail of the citation and proposed penalty and that the 
     employee has 15 working days within which to notify the 
     Secretary that the employee wishes to contest the citation or 
     penalty. If no notice is filed by the employee within 15 
     working days, the citation and the penalty, as proposed, 
     shall be deemed a final order of the Commission and not 
     subject to review by any court or agency.
       ``(d) If the employee notifies the Secretary that the 
     employee intends to contest the citation or proposed penalty, 
     the Secretary shall immediately advise the Commission of such 
     notification, and the Commission shall afford an opportunity 
     for a hearing (in accordance section 554 of title 5, United 
     States Code). The Commission shall thereafter issue an order, 
     based on findings of fact, affirming, modifying, or vacating 
     the Secretary's citation or proposed penalty, or directing 
     other appropriate relief, and such order shall become final 
     30 days after issuance of the order.''.

     SEC. 10. INSPECTION QUOTAS.

       Section 9 (29 U.S.C. 658), as amended by section 8, is 
     further amended by adding at the end the following:
       ``(e) The Secretary shall not establish for any employee 
     within the Occupational Safety and Health Administration 
     (including any regional director, area director, supervisor, 
     or inspector) a quota with respect to the number of 
     inspections conducted, the number of citations issued, or the 
     amount of penalties collected, in accordance with this Act.
       ``(f) Not later than 12 months after the date of enactment 
     of this subsection and annually thereafter, the Secretary 
     shall report on the number of employers that are inspected 
     under this Act and determined to be in compliance with the 
     requirements prescribed under this Act.''.

     SEC. 11. REVIEW BY THE COMMISSION.

       Section 17 (29 U.S.C. 666) is amended by striking 
     subsection (j) and inserting the following:
       ``(j)(1) The Commission shall have the authority to assess 
     all civil penalties under this section. In assessing a 
     penalty under this section, the Commission shall give due 
     consideration to the appropriateness of the penalty with 
     respect to--
       ``(A) the size of the employer;
       ``(B) the number of employees exposed to 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 history of previous violations by an employer; 
     and
       ``(G) whether the violation is the sole result of the 
     failure of the employer to meet a requirement, under this Act 
     or prescribed by regulation, with respect to--
       ``(i) the posting of notices;
       ``(ii) the preparation or maintenance of occupational 
     safety and health records; or
       ``(iii) the preparation, maintenance, or submission of any 
     written information.''.

     SEC. 12. TECHNICAL ASSISTANCE PROGRAM.

       (a) In General.--Section 21(c) (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. A State that has a 
     plan approved under section 18 shall be eligible to enter 
     into a cooperative agreement under this paragraph only if 
     such plan does not include provisions for federally funded 
     consultation to employers.
       ``(B)(i) Except as provided in clause (ii), the Secretary 
     shall reimburse a State that enters into a cooperative 
     agreement under subparagraph (A) in an amount that equals 90 
     percent of the costs incurred by the State 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 
     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).
       ``(C) Notwithstanding any other provisions 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.''.
       (b) Pilot Program.--Section 21 (29 U.S.C. 670) is amended 
     by adding at the end the following:
       ``(d)(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 defined by 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 employee 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. 13. PREVENTION OF ALCOHOL AND SUBSTANCE ABUSE.

       The Occupational Safety and Health Act of 1970 (29 U.S.C. 
     651 et seq.) is amended--
       (1) by striking sections 29, 30, and 31;
       (2) by redesignating sections 32, 33, and 34 as sections 
     30, 31, and 32, respectively; and
       (3) by inserting after section 28 (29 U.S.C. 676) the 
     following:

     ``SEC. 29. 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.--An alcohol and substance abuse 
     testing program described in subsection (a) shall meet the 
     following requirements:
       ``(1) Substance abuse.--A substance abuse testing program 
     shall permit the use of an onsite or offsite urine screening 
     or other recognized screening methods, so long as the 
     confirmation tests are 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), in 
     a lab that is subject to the requirements of subpart B of 
     such mandatory guidelines.
       ``(2) 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.
       ``(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

[[Page S4752]]

     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.''.

     SEC. 14. 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 and recognize the achievement of 
     excellence in both the technical and managerial protection of 
     employees from occupational hazards. The Secretary of Labor 
     shall encourage small businesses (as the term is defined by 
     the Administrator of the Small Business Administration) to 
     participate in the voluntary protection program by carrying 
     out outreach and assistance initiatives and developing 
     program requirements that address the needs of small 
     businesses.
       (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.), unless 
     representatives of the Secretary of Labor observe hazards for 
     which no agreement can be made to abate the hazards in a 
     reasonable amount of time.
       (C) 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 
     employees.
       (D) Reevaluations.--Periodic reevaluations by the Secretary 
     of Labor of the volunteers 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.

  Mr. HAGEL. Mr. President, I want to compliment my distinguished 
colleague from Wyoming, Senator Enzi, for introducing this important 
piece of legislation. This bill addresses an issue that is critical to 
small businessowners across America. I am proud to be an original 
cosponsor.
  The Safety and Health Advancement Act is a commonsense approach to 
reining in an overreaching Federal agency.
  I worked in Congress when the Occupational Safety and Health 
Administration [OSHA] was created in the 1970's. Many people today 
would find it hard to believe that OSHA was created to assist 
business--especially small businesses. In its original intent, OSHA 
existed not just to help enforce workplace safety laws, but to help 
small businessowners understand those laws and advise them on how to 
comply.
  What OSHA has grown into is an agency of confrontation and 
intimidation. The mere mention of OSHA strikes fear in the hearts of 
small businessowners everywhere.
  The father of one of my staff members owns small heating and air-
conditioning business in Nebraska. He's a good employer. He runs a safe 
workplace and treats his employees fairly. But he faces the constant 
threat that an unannounced visit by OSHA could shut him down because he 
doesn't have the resources to appeal the high fines frequently handed 
out by OSHA.
  I hear stories like this from small businessowners throughout 
Nebraska. Businesses that are fined tens of thousands of dollars for a 
minor infraction of a regulation they frequently did not even know 
existed. They are forced to close their doors and lay off their 
employees because they can't afford to fight the fines that come 
through arbitrary process.
  Mr. President, the safety of our workplaces must continue to be a top 
priority. Where there are those violating the law and creating unsafe 
working conditions, we should go after them and persecute to the 
fullest extent of the law. Those are the individuals OSHA should be 
going after. But the Government should not be killing jobs by 
intimidating honest, hardworking small businessowners. We need to focus 
on the real problems in the workplace.
  The Safety and Health Advancement Act would help address this 
problem. It gives OSHA the flexibility to prioritize its resources in 
order to target the worst offenders. It encourages voluntary compliance 
by rewarding employers who use third-party consultants. It holds 
employees responsible for their misconduct at a site that is in 
compliance with OSHA regulations.
  This bill returns OSHA to its original intent and expands its 
consultative services. Under this legislation, OSHA would actually work 
hand in hand with small businessowners to create safe workplaces, not 
merely hand down punitive fines. It moves OSHA away from confrontation 
and back toward cooperation.
  I am proud to be an original cosponsor of the Safety and Health 
Advancement Act. Not only will this bill help make America's workplaces 
safer, it will go a long way in freeing America's small businessowners 
from the heavy burdens of Government regulation. I urge my colleagues 
to support this commonsense legislation.
      By Mr. D'AMATO (for himself, Mrs. Feinstein, Mr. Hatch, Mr. Dodd, 
        Mr. Abraham, Mr. Torricelli, Mrs. Boxer and Mr. Biden):
  S. 768. A bill for the relief of Michel Christopher Meili, Giuseppina 
Meili, Mirjam Naomi Meili, and Davide Meili, to the Committee on the 
Judiciary.


                       PRIVATE RELIEF LEGISLATION

  Mr. D'AMATO. Mr. President, I rise today, along with Senators 
Feinstein, Hatch, Dodd, Abraham, Torricelli, Biden, and Boxer to 
introduce a bill to provide protection to Christophe and his family so 
that they may stay in this country and that Christophe may be allowed 
to work and support his family.
  Christophe Meili is the Swiss bank guard fired after he reported the 
destruction of Holocaust era bank records at the Union Bank of 
Switzerland, Zurich branch, on January 8, 1997. He is here along with 
his wife Guiseppina, and his two children, Miriam and David.
  For his bravery in saving historically important documents from the 
shredder, Christophe was fired and today is under investigation for 
violating Swiss bank secrecy laws for disclosing the records, first to 
the Zurich Jewish Community and then to the Swiss police. He has faced 
persecution and penalties for a deed that ennobles him in the eyes of 
the world. Moreover, he and his family have faced hundreds of death 
threats, including kidnaping threats made against his children. He is 
truly a man without a country.
  When we held a hearing on his plight in the Banking Committee, he 
made two remarkable statements. First, when asked why he felt the 
records he saved were important, he responded,

       ``A few months before, I had seen the movie `Schindler's 
     List.' And that's how, when I saw these documents, I realized 
     I must take responsibility; I must do something.''

  When I asked him at the end of the hearing if he had anything to add, 
he said,

       Please protect me in the U.S.A. and in Switzerland. I think 
     I become a great problem in Switzerland. I have a woman, two 
     little children, and no future. I must see what goes on in 
     the next days for me. Please protect me. That is all.

  Mr. President, we owe Christophe Meili this much. He has asked to be 
protected and it is our duty to do so. We are in the presence of a very 
good man, a man who has made a difference and will be remembered for 
generations to come.
  Christophe Meili should be viewed as a hero, not a criminal. His 
actions in preventing the destruction of evidence are courageous and 
serve the cause of justice for the victims and survivors of the 
Holocaust and their families. It is a stain upon the victims' memory 
that a

[[Page S4753]]

young man who saved records to help their cause is now being made a 
victim. It is unfortunate that the chairman of UBS, Robert Studer, has 
even made remarks questioning the motivation of Christophe for 
preventing the destruction of these records.
  Moreover, while Christophe and his family have been persecuted for 
his noble deed, it is a disgrace that the bank's archivist who ordered 
the shredding at UBS, Erwin Haggenmuller, still has his job. I wrote to 
Peter Cosandey, the district attorney of Zurich who is investigating 
this case, and I asked him to end his harassment of Christophe. I also 
asked him why he is not investigating Erwin Hagenmuller for his role in 
ordering the shredding of the files.
  Christophe has been unemployed since January and this hardship is 
taking its toll on this brave young man and his family. Thankfully, 
Edgar Bronfman has come to the rescue once again by offering Christophe 
a job. I am sure that this is a comfort to Christophe and his family.
  Christophe Meili's story is one of a man dedicated to seeing that 
justice is achieved, yet persecuted because he tried to ensure it. His 
treatment by the security firm that employed him and the bank that 
wants him prosecuted, is unjust and unfair.
  This is a tragedy. Because he did his job, Christophe Meili was 
fired. Because he showed courage and integrity, Christophe Meili was 
fired. And now, they are threatening him with prosecution. The people 
deserve better.
  Mr. President, I urge my colleagues to join me in granting this hero, 
this righteous man, the sanctuary that he has requested and that he and 
his family deserve.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 768

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

     SECTION 1. FINDINGS.

       Congress makes the following findings:
       (1) The actions of Swiss banks and their relations with 
     Nazi Germany before and during World War II and the banks' 
     actions after the war concerning former Nazi loot and 
     heirless assets placed in the banks before the war have been 
     the subject of an extensive and ongoing inquiry by the 
     Committee on Banking, Housing, and Urban Affairs of the 
     Senate and a study by a United States interagency group.
       (2) On January 8, 1997, Michel Christopher Meili, while 
     performing his duties as a security guard at the Union Bank 
     of Switzerland in Zurich, Switzerland, discovered that bank 
     employees were shredding important Holocaust-era documents.
       (3) Mr. Meili was able to save some of the documents from 
     destruction and then turned them over to the Jewish community 
     in Zurich and to the Swiss police.
       (4) Following Mr. Meili's disclosure of the destruction of 
     the Holocaust-era documents, Mr. Meili was suspended and then 
     terminated from his job. He was also interrogated by the 
     local Swiss authorities who tried to intimidate him by 
     threatening prosecution for his heroic actions.
       (5) Since this disclosure, Mr. Meili and his family have 
     been threatened and harassed, and have received many death 
     threats. Mr. Meili also received a hand-delivered note 
     threatening the kidnapping of his children in return for the 
     ``Jewish money'' he would receive for his actions, and urging 
     him to emigrate to the United States or be killed.
       (6) Because of his courageous actions, Mr. Meili and his 
     family have suffered economic hardship, mental anguish, and 
     have been forced to live in fear for their lives.

     SEC. 2. PERMANENT RESIDENCE.

       Notwithstanding any other provision of law, for purposes of 
     the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), 
     Michel Christopher Meili, Giuseppina Meili, Mirjam Naomi 
     Meili, and Davide Meili shall be held and considered to have 
     been lawfully admitted to the United States for permanent 
     residence as of the date of the enactment of this Act upon 
     payment of the required visa fees.

     SEC. 3. REDUCTION OF NUMBER OF AVAILABLE VISAS.

       Upon the granting of permanent residence to Michel 
     Christopher Meili, Giuseppina Meili, Mirjam Naomi Meili, and 
     Davide Meili as provided in this Act, the Secretary of State 
     shall instruct the proper officer to reduce by the 
     appropriate number during the current fiscal year the total 
     number of immigrant visas available to natives of the country 
     of the aliens' birth under section 203(a) of the Immigration 
     and Nationality Act (8 U.S.C. 1153(a)).
      By Mr. LAUTENBERG (for himself, Mr. Torricelli, Mr. Kerry, Mrs. 
        Boxer, Mr. Graham, Mr. Wellstone, Mr. DeWine, and Mr. Kennedy):
  S. 769. A bill to amend the provisions of the Emergency Planning and 
Community Right-To-Know Act of 1986 to expand the public's right to 
know about toxic chemical use and release, to promote pollution 
prevention, and for other purposes; to the Committee on Environment and 
Public Works.

                          ____________________