[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.

                          ____________________