[Congressional Record Volume 143, Number 133 (Tuesday, September 30, 1997)]
[Senate]
[Pages S10229-S10233]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. ENZI (for himself, Mr. Gregg, Mr. Frist, Mr. Jeffords, Mr.
Coats, Mr. DeWine, Mr. Hutchinson, Mr. Burns, Mr. Hagel, Ms.
Collins, Mr. McConnell, Mr. Warner, Mr. Allard, Mr. Craig, Mr.
Roberts, Mr. Sessions, Mr. Thomas, Mr. Smith of Oregon, Mr.
Brownback, and Mr. Nickles):
S. 1237. 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 advancement for employees act
Mr. ENZI. Mr. President, I rise today to introduce the Safety
Advancement for Employees Act of 1997. I send the bill to the desk.
Mr. President, I ask that further reading of the bill be dispensed
with.
Mr. President, during this first Session of the 105th Congress, my
esteemed colleague from New Hampshire, Senator Gregg, and I, each
introduced a bill related to workplace safety and health. On July 10, a
comprehensive OSHA oversight hearing was held by Chairman Frist in the
Subcommittee on Public Health and Safety. This hearing specifically
focused on OSHA modernization legislation pending before the committee.
The results of this hearing further confirmed the commitment Senator
Gregg and I share concerning the safety and health of our Nation's
workforce.
It is with great pleasure that Senator Gregg and I, introduce this
consensus legislation. The SAFE Act has the support of Subcommittee
Chairman Frist, as well as Labor Committee Chairman Jeffords. Both are
proud to be original cosponsors and I am sincerely grateful to them for
all their hard work. They have clearly helped pave the way for this
important measure. In addition, my House colleague and chairman of the
Small Business Committee, Jim Talent, will introduce similar
legislation in the House today. This legislation has received strong
bipartisan support--an essential ingredient in the recipe for success.
It is important to understand that both the Senate and House versions
do not attempt to reinvent OSHA's wheel, just change its tires.
Treading water for 27 years, OSHA has never seriously attempted to
encourage employers and employees in their efforts to create safe and
healthful workplaces. Instead, OSHA chose to operate according to a
command and control mentality. This approach has lead to burdensome and
often incomprehensible regulations which may not relate to worker
safety and health and are, quite often, only sporadically enforced.
Even the AFL-CIO has acknowledged that with only 2,451 State and
Federal inspectors regulating 6.2 million American worksites, an
employer can expect to see an inspector once every 167 years.
While changing OSHA's bald tires, it is important to point out that
the SAFE Act 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.
The SAFE Act is geared to provide employers who seek a safe and
healthful workplace for their employees with the ability to obtain
compliance evaluations from qualified, third party consultants. In
addition, the SAFE Act includes additional voluntary and technical
compliance initiatives to assist employers in deeming their worksites
safe for their employees. Businesses and employees need clarification
on a whole host of issues. They need progress, now. We need good
commonsense legislation that advances safety and health of the American
workplace, now.
Senator Gregg and I are not interested in making another political
statement. It is time for us to tuck the political statements into our
coat pockets and pass good common sense legislation that advances the
safety and health of the American workplace. 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.
Mr. President, I firmly believe that the SAFE Act represents a clean
start to addressing the problems that affect OSHA and its dealings with
employers and employees. Senator Gregg and I, are quite eager to
continue working with my Senate and House colleagues on this important
matter. By working together in a bipartisan fashion, we can ensure our
Nation's work force that Congress does care about their
[[Page S10230]]
personal safety and health. I welcome your support in doing just that.
I ask unanimous consent that the text of the bill be included in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1237
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
Advancement for Employees Act of 1997'' or the ``SAFE 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 of Labor 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 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 subsection, the Secretary shall establish
an advisory committee (pursuant to the Federal Advisory
Committee Act (5 U.S.C. App)) to carry out 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 qualifies
individuals to provide consultation services to employers to
assist employers in the identification and correction of
safety and health hazards in the workplaces of employers.
``(2) Eligibility.--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.
``(D) Other individuals determined to be qualified by the
Secretary.
``(3) Geographical scope of consultation services.--An
individual qualified 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 qualified 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 qualified 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
qualified individual.
``(d) Consultation Services.--
``(1) Scope of consultation services.--
``(A) In general.--The consultation services described in
subsection (a), and provided by an individual qualified 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 qualified 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 qualified 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 qualified 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, or
records, reports, or other information prepared in connection
with safety and health inspections, audits, or reviews
conducted by or for an employer and not required under this
Act, shall not be admissible in a court of law or
administrative proceeding 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 qualified 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.
[[Page S10231]]
``(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:
``(h) 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) of section 8A.
``(i) 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. INSPECTION PROCEDURES AND QUOTAS.
(a) In General.--Section 8(f) (29 U.S.C. 657(f)) is
amended--
(1) in paragraph (1)--
(A) in the second sentence, by inserting before ``and a
copy'' the following: ``and shall state whether the alleged
violation has been brought to the attention of the employer
and if so, whether the employer has refused to take any
action to correct the alleged violation,'';
(B) by inserting after the third sentence the following:
``The inspection shall be conducted for the limited purpose
of determining whether the violation exists. During such an
inspection, the Secretary may take appropriate actions with
respect to health and safety violations that are not within
the scope of the inspection and that are observed by the
Secretary or an authorized representative of the Secretary
during the inspection.''; and
(C) by inserting before the last period the following: ``,
and, upon request by the employee or employee representative,
shall provide a written statement of the reasons for the
determination of the Secretary''; and
(2) by adding at the end thereof the following:
``(3) The Secretary or an authorized representative of the
Secretary may, as a method of investigating an alleged
violation or danger under this subsection, attempt, if
feasible, to contact an employer by telephone, facsimile, or
other appropriate methods to determine whether--
``(A) the employer has taken corrective actions with
respect to the alleged violation or danger; or
``(B) there are reasonable grounds to believe that a hazard
exists.
``(4) The Secretary is not required to conduct an
inspection under this subsection if the Secretary determines
that a request for an inspection was made for reasons other
than the safety and health of the employees of an employer or
that the employees of an employer are not at risk.''.
(b) Quotas.--Section 9 (29 U.S.C. 658) is amended by adding
at the end the following:
``(d) 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.
``(e) 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. 9. PERSONAL RESPONSIBILITIES.
(a) The Use of Alternative Methods as an Affirmative
Defense.--Section 9 (29 U.S.C. 658), as amended by section 8,
is further amended by adding at the end the following:
``(f)(1) 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.
``(2) 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--
``(A) the employees of the employer have been provided with
the proper training and equipment to prevent such a
violation;
``(B) work rules designed to prevent such a violation have
been established and adequately communicated to the employees
by the employer and the employer has taken reasonable
measures to discipline employees when violations of the work
rules have been discovered;
``(C) the failure of employees to observe work rules led to
the violation; and
``(D) reasonable measures have been taken by the employer
to discover any such violation.
``(g) A citation issued under subsection (a) to an employer
who violates section 5, 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.
``(h) Subsections (f) and (g) shall not be construed to
eliminate or modify other defenses that may exist to any
citation.''.
(b) 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:
``SEC. 10A. EMPLOYEE RESPONSIBILITY.
``(a) In General.--Notwithstanding any other provision of
this Act, an employee who, with respect to personal
protective equipment, 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, as determined
by the Secretary, for each violation.
``(b) Citations.--If, upon inspection and investigation,
the Secretary or the authorized representative of the
Secretary believes that an employee of an employer has, with
respect to personal protective equipment, 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) Notification.--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) Contesting of Citation.--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
after the hearing issue an order, based on findings of fact,
affirming, modifying, or vacating the Secretary's citation or
proposed penalty, or directing other appropriate relief. Such
order shall become final 30 days after issuance of the
order.''.
SEC. 10. REDUCED PENALTIES FOR PAPERWORK VIOLATIONS.
Section 17 (29 U.S.C. 666) is amended by striking
subsection (i) and inserting the following:
``(i) Any employer who violates any of the posting or
paperwork requirements, other than fraudulent reporting
requirement deficiencies, prescribed under this Act shall not
be assessed a civil penalty for such a violation unless the
Secretary determines that the employer has violated
subsection (a) or (d) with respect to the posting or
paperwork requirements.''.
SEC. 11. REVIEW BY THE COMMISSION.
Section 17 (29 U.S.C. 666) is amended by striking
subsection (j) and inserting the following:
``(j) The Commission shall have authority to assess all
civil penalties under this section. In assessing a penalty
under this section for a violation, the Commission shall give
due consideration to the appropriateness of the penalty with
respect to--
``(1) the size of an employer;
``(2) the number of employees exposed to the violation;
``(3) the likely severity of any injuries directly
resulting from the violation;
``(4) the probability that the violation could result in
injury or illness;
``(5) the good faith of an employer in correcting the
violation after the violation has been identified;
``(6) the history of previous violations by an employer;
and
``(7) whether the violation is the sole result of the
failure of an employer to meet a requirement under this Act,
or prescribed by regulation, with respect to the posting of
notices, the preparation or maintenance of occupational
safety and health records, or the preparation, maintenance,
or submission of any written information.''.
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.
``(B)(i) Except as provided in clause (ii), the Secretary
shall reimburse a State that enters into a cooperative
agreement under
[[Page S10232]]
subparagraph (A) in an amount that equals 90 percent of the
costs incurred by the State for the provision of consultation
services under such agreement.
``(ii) A State shall be reimbursed by the Secretary for 90
percent of the costs incurred by the State for the provision
of--
``(I) training approved by the Secretary for State
personnel operating under a cooperative agreement; and
``(II) specified out-of-State travel expenses incurred by
such personnel.
``(iii) A reimbursement paid to a State under this
subparagraph shall be limited to costs incurred by such State
for the provision of consultation services under this
paragraph and the costs described in clause (ii).
``(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 the term is defined by the Administrator of
the Small Business Administration). The Secretary shall carry
out the program for a period not to exceed 2 years.
``(2) The Secretary shall provide consultation services
under paragraph (1) not later than 4 weeks after the date on
which the Secretary receives a request from an employer.
``(3) The Secretary may impose a nominal fee to an employer
requesting consultation services under paragraph (1). The fee
shall be in an amount determined by the Secretary. Employers
paying a fee shall receive priority consultation services by
the Secretary.
``(4) In lieu of issuing a citation under section 9 to an
employer for a violation found by the Secretary during a
consultation under paragraph (1), the Secretary shall permit
the employer to carry out corrective measures to correct the
conditions causing the violation. The Secretary shall conduct
not more than 2 visits to the workplace of the employer to
determine if the employer has carried out the corrective
measures. The Secretary shall issue a citation as prescribed
under section 5 if, after such visits, the employer has
failed to carry out the corrective measures.
``(5) Not later than 90 days after the termination of the
program under paragraph (1), the Secretary shall prepare and
submit a report to the appropriate committees of Congress
that contains an evaluation of the implementation of the
pilot program.''.
SEC. 13. 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.).
(C) Information.--Employers who are approved by the
Secretary of Labor for participation in the program shall
assure the Secretary of Labor that information about the
safety and health program of the employers shall be made
readily available to the Secretary of Labor to share with
employees.
(D) Reevaluations.--Periodic reevaluations by the Secretary
of Labor of the employers shall be required for continued
participation in the program.
(3) Exemptions.--A site with respect to which a program has
been approved shall, during participation in the program be
exempt from inspections or investigations and certain
paperwork requirements to be determined by the Secretary of
Labor, except that this paragraph shall not apply to
inspections or investigations arising from employee
complaints, fatalities, catastrophes, or significant toxic
releases.
SEC. 14. 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 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. 15. CONSULTATION ALTERNATIVES.
Subsection (a) of section 9 (29 U.S.C. 658(a)) is amended
to read as follows:
``(a)(1) Nothing in this Act shall be construed as
prohibiting the Secretary or the authorized representative of
the Secretary from providing technical or compliance
assistance to an employer in correcting a violation
discovered during an inspection or investigation under this
Act without issuing a citation.
``(2) Except as provided in paragraph (3), if, upon an
inspection or investigation, the Secretary or an authorized
representative of the Secretary believes that an employer has
violated a requirement of section 5, of any regulation, rule,
or order promulgated pursuant to section 6, or of any
regulations prescribed pursuant to this Act, the Secretary
may with reasonable promptness issue a citation to the
employer. Each citation shall be in writing and shall
describe with particularity the nature of a violation,
including a reference to the provision of the Act,
regulation, rule, or order alleged to have been violated. The
citation shall fix a reasonable time for the abatement of the
violation.
``(3) The Secretary or the authorized representative of the
Secretary--
``(A) may issue a warning in lieu of a citation with
respect to a violation that has no significant relationship
to employee safety or health; and
``(B) may issue a warning in lieu of a citation in cases in
which an employer in good faith acts promptly to abate a
violation if the violation is not a willful or repeated
violation.''.
______
By Mr. SMITH of Oregon:
[[Page S10233]]
S. 1238. A bill to amend section 1926 of the Public Health Service
Act to encourage States to strengthen their efforts to prevent the sale
and distribution of tobacco products to individuals under the age of 18
and for other purposes; to the Committee on Labor and Human Resources.
the tobacco use by minors deterrence act of 1997
Mr. SMITH of Oregon. Mr. President, today in America, too many
teenagers have access to too much tobacco at too many stores and retail
outlets. The result? Each day 3,000 more young people start smoking and
get addicted to lethal tobacco products.
As Congress considers legislation to reduce teenage smoking and to
address the growing public health concerns associated with the use of
tobacco, I want to propose a concept that goes to the heart of the
problem--keeping tobacco products out of the hands of kids. While there
are numerous well-intentioned suggestions as to how to best achieve
this goal, I believe that the proposal I am introducing today goes to
the heart of the problem--holding both those who sell tobacco
accountable and those who illegally purchase tobacco responsible. It
demands the participation by store owners, clerks, parents, kids, and
local law enforcement.
The proposal is a simple, direct approach: require those who sell
tobacco to be licensed and trained, and hold children who illegally
purchase tobacco responsible for their actions--by notifying their
parents, imposing fines and community service, and restricting access
to driving privileges.
With this legislation, we have an opportunity to take some
incremental and immediate action today, to empower our communities in
the fight against teenage tobacco use. The Tobacco Use by Minors
Deterrence Act elicits cooperation among families, communities, the
retailers, and law enforcement officials in the fight against tobacco
use by children. Importantly, this legislation gives retailers a new
leadership role and places greater responsibility on parents and
minors.
First, this bill establishes a self-funding State license program for
retailers to sell tobacco products, similar to liquor licenses. Second,
it imposes strict penalties on store owners and employees for selling
tobacco products to minors. Third, it requires employee training on all
tobacco laws. Fourth, it subjects minors who are caught purchasing or
using tobacco products to punishments that are meaningful to them,
including the option of fines, parental notification, community
service, and possible loss of driving privileges.
In my State of Oregon, restrictions on the distribution and sale of
tobacco products are some of the strongest in the nation. This
legislation echoes Oregon's commitment by making it more difficult for
retailers across the Nation to make a profit from the illegal sale of
tobacco products to children.
Just how important is it that we take immediate action? Each day that
we wait for the pending FDA lawsuits, and each day that we spend
talking about doing something to reduce tobacco use by our Nation's
children, 3,000 more young people begin smoking. I want you to think
about that for a moment. Each day, 3,000 children start smoking---
that's more than 1 million children each year. To put this into
perspective, the Centers for Disease Control [CDC] estimates that 16.6
million of our children today will become regular smokers, and almost
one-third, approximately 5 million children, will die from tobacco-
related illness. In my State of Oregon, 191,688 children under 18 are
projected to become smokers; 61,340 of those youth will die. It is time
to recognize teen tobacco use for what it is--a public health epidemic.
In addition to the loss of life associated with tobacco use, there is
a significant cost to our public health system. Currently, health care
costs caused directly by smoking total more than $50 billion each year.
We cannot afford to wait any longer. Because the longer we postpone
empowering communities, families, and law enforcement officials, we do
so by sacrificing the health and life of our children.
____________________