[Congressional Record Volume 150, Number 103 (Thursday, July 22, 2004)]
[Senate]
[Pages S8696-S8701]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ENZI:
  S. 2719. 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 Health, Education, Labor, 
and Pensions.
  Mr. ENZI. Mr. President, I rise to introduce the Safety Advancement 
for Employees (SAFE) Act of 2004. Every worker in America deserves to 
return home safely at the end of the day. However, more than 5,500 
workers die while at work annually. This means that, on any given day, 
15 workers will not return home to their families. The fact that these 
accidents are occurring is not because employers don't care about 
workplace safety. On the contrary, the Occupational Safety and Health 
Administration, or OSHA, estimated that 95 percent of employers are 
striving to create a safer workplace. The vast majority of employers 
want to comply with safety laws. Therefore, any effort to significantly 
improve workplace safety by focusing solely on the small percentage of 
bad actors who willfully break the law is doomed to failure.
  We don't need political rhetoric, we need workable solutions. As 
Chairman of the Subcommittee on Employment, Safety and Training, I felt 
responsible for finding a solution that will succeed in protecting more 
workers from harm. I feel a responsibility to every worker and every 
worker's family to do all I can to prevent workplace accidents and 
deaths. The SAFE Act will provide the systematic safety improvements 
that American workers and their families deserve. This legislation 
helps the vast majority of good faith employers who want to achieve 
compliance with safety laws. They just need help doing so--more help 
than OSHA can currently give them. The SAFE Act also allows OSHA to 
effectively target the few bad actors who willfully place their 
employees at risk. It also includes provisions to improve hazard 
communication and reduce injuries and illnesses caused by the presence 
of hazardous chemicals in the workplace.
  The SAFE Act of 2004 will increase the maximum jail sentence for a 
willful safety violation that results in a worker's death from 6 
months, which is a misdemeanor, to 18 months, which is a felony. It 
would be naive to believe that increasing the criminal penalty by 
itself will significantly improve workplace safety. Increasing the 
maximum jail sentence for bad actors will do nothing to help improve 
the workplace safety records of the 95 percent of employers who want to 
do the right thing.
  I want to prevent the accident in the first place, not just penalize 
the employer for an injury or death that could have been avoided. By 
then, it's too late for the victim and their family. We need a system 
that encourages the good faith employers to find out how to achieve 
safety voluntarily and without fear of retribution. We need a system 
that harnesses the resources of safety experts so employers can achieve 
compliance with safety laws. And, we need a system that can target and 
punish the few bad employers. This is the system promoted by the Safety 
Advancement for Employees, or SAFE, Act. The SAFE Act will save 
workers' lives.

  The SAFE Act is a workable solution that will effectively add 
thousands of highly-trained safety and health professionals to the job 
of inspecting workplaces around the country. Why is enlisting third 
party safety experts so critical to the effort of getting employers to 
comply with safety laws? Because OSHA, the government agency 
responsible for regulating safety laws, can't do it alone. OSHA should 
be providing helpful assistance to the overwhelming number of employers 
who are pursuing safer workplaces. Simultaneously, OSHA should be 
targeting those employers who are willfully disregarding safety laws, 
inspecting them, penalizing them, and following up to make sure that 
bad practices are stopped before accidents occur.
  It has been estimated that it would take OSHA over 167 years to 
inspect every work site in the country. Therefore, OSHA cannot 
effectively help those good faith employers or deter bad employers from 
breaking the law. This is why the SAFE Act is so important. It will 
allow highly-trained safety and health professionals to reach work 
sites all over the country, where OSHA hasn't even been able to make a 
dent, encouraging employers to get into compliance voluntarily.
  These highly-trained consultants will work with employers to get them 
into compliance with safety laws. If the employer gets into compliance, 
the employer can receive a certificate of compliance which will exempt 
him from civil penalties only for one year. However, at all times and 
under all circumstances, OSHA remains free to inspect these work sites.
  The third-party consultation program is particularly important for 
small businesses. Employers have to read through and implement over a 
thousand pages of highly technical safety regulations. Too often, 
employers are left on their own to try to understand and comply with 
all these regulations. It is hard enough for large employers who have 
an in-house staff of safety experts. For the small employer--whose 
safety ``expert'' is also the human resources manager, accountant, and 
systems administrator--the task is nearly impossible. We're talking 
about employers who want to do the right thing, who want to comply with 
the law and protect their workers. They just need help doing so--help 
that OSHA is not currently equipped to provide.

[[Page S8697]]

  In a report published in March, 2004, the General Accounting Office 
cited the use of third party consultants among a list of 
recommendations by researchers, safety and health practitioners, and 
specialists, to achieve voluntary OSHA compliance. According to the GAO 
report: ``Using Consultants could leverage existing OSHA resources by 
helping workplaces that might never otherwise see an OSHA inspector, 
especially small employers, and possibly also by enabling employers to 
address additional safety and health issues that might not be covered 
under an OSHA inspection for compliance standards.''
  We need to leverage the resources of OSHA and the private sector to 
improve occupational safety around the country--in large and small 
workplaces alike.
  Nowhere is the safety and health challenge more daunting for small 
businesses than it is in the area of hazard communication. Hazardous 
chemicals pervade the 21st Century workplace. An estimated 650,000 
hazardous chemical products are used in over 3 million workplaces 
across the country. Everyday, more than 30 million American workers 
will be exposed to hazardous chemicals on the job. Whether or not they 
return home safely at the end of the day depends on their awareness of 
these hazards and appropriate precautionary measures. Communication is 
the key to protecting the safety and health of these 30 million 
workers. However, the protection is only as effective as the 
communication.

  Twenty years ago, OSHA adopted the Hazard Communication Standard. 
Material Safety Data Sheets are the cornerstone of hazard 
communication. The chemical manufacturer or importer evaluates the 
chemical and provides employers with information about its hazards and 
protective measures on the Material Safety Data Sheet, which employers 
must then provide to workers.
  OSHA's rule provides a generic framework for hazard communication. 
With over 650,000 chemicals in use, and tens of thousands of chemical 
manufacturers, the clarity, format, and accuracy of Material Safety 
Data Sheets varies widely. If the Material Safety Data Sheet is stuffed 
in some thick binder gathering dust, the worker doesn't have time to 
shuffle through the pages of complex, technical jargon it includes. 
Workers shouldn't need a Ph.D. in biochemistry to know how to protect 
themselves against hazardous chemicals.
  Twenty years after the Hazard Communication standard was published, 
it's time for review. It's time to heed the call of workers and 
employers alike for more clarity, consistency, accuracy, and guidance. 
Over the years, I've had the great fortune to work with Ron Hayes on 
improving the safety and health of American workers. Ron wrote me a 
letter. I ask unanimous consent that the letter be printed in the 
Record. He writes that: ``Other standards cover many issues for the 
workers, but the Material Safety Data Sheet, paperwork is used millions 
of times each workday, and the accuracy of these sheets [is] of 
paramount importance for the complete protection of our most important 
resource, our great American workers.''
  To improve the protection of our great American workers from 
hazardous chemicals, the new SAFE Act requires OSHA to develop and post 
on its website model material safety data sheets for those highly 
hazardous chemicals listed on the Process Safety Management Standard. 
These models will be particularly helpful to small businesses that 
don't have the expertise to develop or decipher their own.
  In the twenty years since the Hazard Communication Standard was 
adopted, the American workplace has changed dramatically. Electronic or 
internet-based systems not envisioned twenty years ago can 
significantly improve hazard communication. The new SAFE Act recognizes 
the promise of technology to improve hazard communication. The 
legislation creates grants to develop, implement, or evaluate 
strategies to improve hazard communication through the use of better 
technology.
  In the past twenty years, our workforce has become increasingly 
diverse. Effective hazard communication should reflect the fact that 
numerous languages may be spoken at a single worksite. Our economy has 
also become increasingly global. The chemical industry is one of the 
United States' largest exporting sectors. The manner in which other 
countries regulate hazardous chemicals impacts an American 
manufacturer's ability to compete in the global marketplace.
  In 2002, the United Nations adopted the Globally Harmonized System 
for Classification and Labeling of Chemicals. The Globally Harmonized 
System is designed to improve the quality of hazard communication by 
establishing standardized requirements for hazard evaluation, safety 
data sheets, and labels. The Globally Harmonized System has the 
potential to address significant concerns with current hazard 
communication. Whether the United States adopts it cannot be decided by 
OSHA alone. Other agencies involved in regulating hazardous chemicals 
must be involved. Key stakeholders in hazard communication--chemical 
manufacturers, employers, workers, and safety and health experts--must 
also be involved. For this reason, the new SAFE Act establishes a 
commission of relevant Federal agencies and stakeholders to study and 
make recommendations to Congress about the adoption of the Globally 
Harmonized System.
  The SAFE Act sets us firmly on the path towards achieving the goal of 
the Occupational Safety and Health Act to ``assure so far as possible 
every working man and woman in the nation safe and healthful working 
conditions.'' Enforcement alone cannot ensure the safety and health of 
America's workforce. Government and the private sector can--and must--
work together to create a culture where safety and health is the number 
one priority.
  I first introduced the SAFE Act in 1997. Today, the call for 
meaningful OSHA reform through cooperative and proactive efforts is 
even louder. The more time that passes without taking such action, the 
more injuries and deaths will occur that could otherwise be avoided. As 
I introduce the new SAFE Act today, I hope that we can again begin 
meaningful discussions about what is involved in achieving safer 
workplaces. I also hope that we can actually pass the SAFE Act and 
achieve greater safety and health for our most important resource--our 
great American worker.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill and letter were ordered to be 
printed in the Record, as follows:

                                S. 2719

       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 2004'' 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) of the Act (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. 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) Purpose.--It is the purpose of this section to 
     encourage employers to conduct voluntary safety and health 
     audits using the expertise of qualified safety and health 
     consultants and to proactively seek individualized solutions 
     to workplace safety and health concerns.
       ``(b) Establishment of Program.--
       ``(1) In general.--Not later than 18 months after the date 
     of enactment of this section, the Secretary, in consultation 
     with the advisory committee established under section 7(d), 
     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.--The following individuals shall be 
     eligible to be qualified under the program under paragraph 
     (1) as certified safety and health consultants:
       ``(A) An individual who is licensed by a State authority as 
     a physician, industrial

[[Page S8698]]

     hygienist, professional engineer, safety engineer, safety 
     professional, or registered 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 who is 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) An individual who has not less than 10 years 
     expertise in workplace safety and health.
       ``(E) Other individuals determined to be qualified by the 
     Secretary.
       ``(3) Geographical scope of consultation services.--A 
     consultant qualified under the program under paragraph (1) 
     may provide consultation services in any State.
       ``(4) Limitation based on expertise.--A consultant 
     qualified under the program under paragraph (1) may only 
     provide consultation services to an employer with respect to 
     a worksite if the work performed at that worksite coincides 
     with the particular expertise of the individual.
       ``(c) Safety and Health Registry.--The Secretary shall 
     develop and maintain a registry that includes all consultants 
     that are qualified under the program under subsection (b)(1) 
     to provide the consultation services described in subsection 
     (b) and shall publish and make such registry readily 
     available to the general public.
       ``(d) Disciplinary Actions.--The Secretary may revoke the 
     status of a consultant qualified under subsection (b), or the 
     participation of an employer under subsection (b) in the 
     third party consultation program, if the Secretary determines 
     that the consultant or employer--
       ``(1) has failed to meet the requirements of the program; 
     or
       ``(2) has committed malfeasance, gross negligence, 
     collusion or fraud in connection with any consultation 
     services provided by the qualified consultant.
       ``(e) Program Requirements.--
       ``(1) Full service consultation.--The consultation services 
     described in subsection (b), and provided by a consultant 
     qualified under the program under subsection (b)(1), 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. Employers electing to 
     participate in such program shall contract with a consultant 
     qualified under subsection (b)(2) to perform a full 
     service visit and consultation covering the employer's 
     establishment, including a complete safety and health 
     program review. Following the guidance as specified in 
     this section, the consultant shall discuss with the 
     employer the elements of an effective program.
       ``(2) Consultation report.--
       ``(A) In general.--After a consultant conducts a 
     comprehensive survey of an employer under a program under 
     this section, the consultant shall prepare and submit to the 
     employer a written report that includes an action plan 
     identifying any violations of this Act, and any appropriate 
     corrective measures to address the violations that are 
     identified using an effective safety and health program.
       ``(B) Elements.--A consultation report shall contain each 
     of the following elements.
       ``(i) Action plan.--

       ``(I) In general.--An action plan under subparagraph (A) 
     shall be developed in consultation with the employer as part 
     of the initial comprehensive survey. The consultant and the 
     employer shall jointly use the onsite time in the initial 
     visit to the employer's place of business to agree on the 
     terms of the action plan and the time frames for achieving 
     specific items.
       ``(II) Requirements.--The action plan shall outline the 
     specific steps that must be accomplished by the employer 
     prior to receiving a certificate of compliance. The action 
     plan shall address in detail--

       ``(aa) the employer's correction of all identified safety 
     and health hazards, with applicable time frames;
       ``(bb) the steps necessary for the employer to implement an 
     effective safety and health program, with applicable time 
     frames; and
       ``(cc) a statement of the employer's commitment to work 
     with the consultation project to achieve a certificate of 
     compliance.
       ``(ii) Safety and health program.--An employer electing to 
     participate in a program under this section shall establish a 
     safety and health program to manage workplace safety and 
     health to reduce injuries, illnesses and fatalities that 
     complies with paragraph (3). Such safety and health program 
     shall be appropriate to the conditions of the workplace 
     involved.
       ``(3) Requirements for safety and health program.--
       ``(A) Written program.--An employer electing to participate 
     shall maintain a written safety and health program that 
     contains policies, procedures, and practices to recognize and 
     protect their employees from occupational safety and health 
     hazards. Such procedures shall include provisions for the 
     identification, evaluation and prevention or control of 
     workplace hazards.
       ``(B) Major elements.--A safety and health program shall 
     include the following elements, and may include other 
     elements as necessary to the specific worksite involved and 
     as determined appropriate by the qualified consultant and 
     employer:
       ``(i) Employer commitment and employee involvement.--

       ``(I) In general.--The existence of both management 
     leadership and employee participation must be demonstrated in 
     accordance with subclauses (II) and (III).
       ``(II) Management leadership.--To make a demonstration of 
     management leadership under this subclause, the employer 
     shall--

       ``(aa) set a clear worksite safety and health policy that 
     employees can fully understand;
       ``(bb) set and communicate clear goals and objectives with 
     the involvement of employees;
       ``(cc) provide essential safety and health leadership in 
     tangible and recognizable ways;
       ``(dd) set positive safety and health examples; and
       ``(ee) perform comprehensive reviews of safety and health 
     programs for quality assurance using a process which promotes 
     continuous correction.

       ``(III) Employee participation.--With respect to employee 
     participation, the employer shall demonstrate a commitment to 
     working to develop a comprehensive, written and operational 
     safety and health program that involves employees in 
     significant ways that affect safety and health. In making 
     such a demonstration, the employer shall--

       ``(aa) provide for employee participation in actively 
     identifying and resolving safety and health issues in 
     tangible ways that employees can clearly understand;
       ``(bb) assign safety and health responsibilities in such a 
     way that employees can understand clearly what is expected of 
     them;
       ``(cc) provide employees with the necessary authority and 
     resources to meet their safety and health responsibilities; 
     and
       ``(dd) provide that safety and health performance for 
     managers, supervisors and employees be measured in tangible 
     ways.
       ``(ii) Workplace analysis.--The employer, in consultation 
     with the consultant, shall systematically identify and assess 
     hazards in the following ways:

       ``(I) Conduct corrective action and regular expert surveys 
     to update hazard inventories.
       ``(II) Have competent personnel review every planned or new 
     facility, process material, or equipment.
       ``(III) Train all employees and supervisors, conduct 
     routine joint inspections, and correct items identified.
       ``(IV) Establish a way for employees to report hazards and 
     provide prompt responses to such reports.
       ``(V) Investigate worksite accidents and near accidents.
       ``(VI) Provide employees with the necessary information 
     regarding incident trends, causes and means of prevention.

       ``(iii) Hazard prevention.--The employer, in consultation 
     with the consultant, shall--

       ``(I) engage in timely hazard control, working to ensure 
     that hazard controls are fully in place and communicated to 
     employees, with emphasis on engineering controls and 
     enforcing safe work procedures;
       ``(II) maintain equipment using operators who are trained 
     to recognize maintenance needs and perform or direct timely 
     maintenance;
       ``(III) provide training on emergency planning and 
     preparation, working to ensure that all personnel know 
     immediately how to respond as a result of effective planning, 
     training, and drills;
       ``(IV) equip facilities for emergencies with all systems 
     and equipment in place and regularly tested so that all 
     employees know how to communicate during emergencies and how 
     to use equipment; and
       ``(V) provide for emergency medical situations using 
     employees who are fully trained in emergency medicine.

       ``(iv) Safety and health training.--The employer, in 
     consultation with the consultant, shall--

       ``(I) involve employees in hazard assessment, development 
     and delivery of training;
       ``(II) actively involve supervisors in worksite analysis by 
     empowering them to ensure physical protections, reinforce 
     training, enforce discipline, and explain work procedures; 
     and
       ``(III) provide training in safety and health management to 
     managers.

       ``(4) Reinspection.--At a time agreed to by the employer 
     and the consultant, the consultant may reinspect the 
     workplace of the employer to verify that the required 
     elements in the consultation report have been satisfied. If 
     such requirements have been satisfied, the employer shall be 
     provided with a certificate of compliance for that workplace 
     by the qualified consultant.
       ``(f) Exemption From Civil Penalties for Compliance.--
       ``(1) In general.--If an employer enters into a contract 
     with an individual qualified under the program under this 
     section, to provide consultation services described in 
     subsection (b), and receives a certificate of compliance 
     under subsection (e)(4), the employer shall be exempt from 
     the assessment of any civil penalty under section 17 for a 
     period of 1 year after the date on which the employer 
     receives such certificate.
       ``(2) Exceptions.--An employer shall not be exempt under 
     paragraph (1)--
       ``(A) if the employer has not made a good faith effort to 
     remain in compliance as required under the certificate of 
     compliance; or
       ``(B) to the extent that there has been a fundamental 
     change in the hazards of the workplace.
       ``(g) Right To Inspect.--Nothing in this section shall be 
     construed to affect the

[[Page S8699]]

     rights of the Secretary to inspect and investigate worksites 
     covered by a certificate of compliance.
       ``(h) Renewal Requirements.--An employer that is granted a 
     certificate of compliance under this section may receive a 1 
     year renewal of the certificate if the following elements are 
     satisfied:
       ``(1) A qualified consultant shall conduct a complete 
     onsite safety and health survey to ensure that the safety and 
     health program has been effectively maintained or improved, 
     workplace hazards are under control, and elements of the 
     safety and health program are operating effectively.
       ``(2) The consultant, in an onsite visit by the consultant, 
     has determined that the program requirements have been 
     complied with and the health and safety program has been 
     operating effectively.
       ``(i) Non-Fixed Worksites.--With respect to employer 
     worksites that do not have a fixed location, a certificate of 
     compliance shall only apply to that worksite which satisfies 
     the criteria under this section and such certificate shall 
     not be portable to any other worksite. This section shall not 
     apply to service establishments that utilize essentially the 
     same work equipment at each non-fixed worksite.''.

      SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COMMITTEE.

       Section 7 of the Act (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. CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION 
                   FOR CERTAIN OCCUPATIONAL SAFETY AND HEALTH 
                   ADMINISTRATION PERSONNEL.

       Section 8 of the Act (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 involved, meet the eligibility requirements 
     prescribed under subsection (b)(2) of section 8A.
       ``(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. 6. EXPANDED INSPECTION METHODS.

       (a) Purpose.--It is the purpose of this section to empower 
     the Secretary of Labor to achieve increased employer 
     compliance by using, at the Secretary's discretion, more 
     efficient and effective means for conducting inspections.
       (b) General.--Section 8(f) of the Act (29 U.S.C. 657(f) is 
     amended--
       (1) by adding at the end 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.''.

      SEC. 7. WORKSITE-SPECIFIC COMPLIANCE METHODS.

       Section 9 of the Act (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, 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.
       ``(e) Subsection (d) shall not be construed to eliminate or 
     modify other defenses that may exist to any citation.''.

      SEC. 8. TECHNICAL ASSISTANCE PROGRAM.

       (a) In General.--Section 21(c) of the Act (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 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).''.
       (b) Pilot Program.--Section 21 of the Act (29 U.S.C. 670) 
     is amended by adding at the end the following:
       ``(e)(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 of 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. 9. 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 excellence and recognize the 
     achievement of excellence in both the technical and 
     managerial protection of employees from occupational hazards.
       (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,

[[Page S8700]]

     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.
       (4) Increased small business participation.--The Secretary 
     of Labor shall establish and implement, by regulation, a 
     program to increase participation by small businesses (as the 
     term is defined by the Administrator of the Small Business 
     Administration) in the voluntary protection program through 
     outreach and assistance initiatives and developing program 
     requirements that address the needs of small businesses.

      SEC. 10. PREVENTION OF ALCOHOL AND SUBSTANCE ABUSE.

       The Act (29 U.S.C. 651 et seq.) is amended by adding at the 
     end the following:

     ``SEC. 34. 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.--
       ``(1) Requirements.--An alcohol and substance abuse testing 
     program described in subsection (a) shall meet the following 
     requirements:
       ``(A) Substance abuse.--A substance abuse testing program 
     shall permit the use of an onsite or offsite testing.
       ``(B) 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.
       ``(2) Definition.--For purposes of this section the term 
     `alcohol and substance abuse testing program' means any 
     program under which test procedures are used to take an 
     analyze blood, breath, hair, urine, saliva, or other body 
     fluids or materials for the purpose of detecting the presence 
     or absence of alcohol or a drug or its metabolites. In the 
     case of urine testing, the confirmation tests must be 
     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). Proper 
     laboratory protocols and procedures shall be used to 
     assure accuracy and fairness and laboratories must be 
     subject to the requirements of subpart B of the mandatory 
     guidelines, State certification, the Clinical Laboratory 
     Improvements Act of the College of American Pathologists.
       ``(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 not 
     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. 11. DISCRETIONARY COMPLIANCE ASSISTANCE.

       Subsection (a) of section 9 of the Act (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.''.

     SEC. 12. HAZARD COMMUNICATION.

       (a) Model Material Safety Data Sheets.--
       (1) Purpose.--It is the purpose of this section to assist 
     chemical manufactures and importers in preparing material 
     safety data sheets pursuant to the requirements of the Hazard 
     Communication standard published at section 1910.1200 of 
     title 29, Code of Federal Regulations, and to improve the 
     accuracy, consistency, and comprehensibility of such material 
     safety data sheets.
       (2) Model material safety data sheets for highly hazardous 
     chemicals.--The Secretary of Labor shall develop model 
     material safety data sheets for the list of highly hazardous 
     chemicals contained in Appendix A to the Process Safety 
     Management of Highly Hazardous Chemicals standard published 
     at section 1910.119 of title 29, Code of Federal Regulations. 
     Such model material safety data sheets shall--
       (A) comply with the requirements of the Hazard 
     Communication standard published at section 1910.100 of such 
     title 29;
       (B) be presented in a consistent format that enhances the 
     reliability and comprehensibility of information about 
     chemical hazards in the workplace and protective measures; 
     and
       (C) be made available to the public, including through 
     posting on the Occupational Safety and Health 
     Administration's website, within 18 months after the date of 
     enactment of this Act.
       (3) Construction.--Nothing in this subsection shall be 
     construed to--
       (A) modify or amend the Hazard Communication standard 
     published at section 1910.1200 of title 29, Code of Federal 
     Regulations, the Process Safety Management of Highly 
     Hazardous Chemicals standard published at section 1910.119 of 
     such title 29, or any other provision of law; and
       (B) authorize the Secretary of Labor to include in the 
     model material safety data sheet developed under this 
     subsection any suggestion or recommendation as to permissible 
     or appropriate workplace exposure levels for these chemicals.
       (4) Authorization of appropriations.--There are authorized 
     to be appropriated to the Department of Labor such sums as 
     may be necessary to carry out this subsection.
       (b) Globally Harmonized System Commission.--
       (1) Establishment.--Not later than 6 months after the date 
     of enactment of this Act, there shall be established a 
     commission, to be known as the Global Harmonization 
     Commission (referred to in this subsection as the 
     ``Commission''), to consider the implementation of the United 
     Nations Globally Harmonized System of Classification and 
     Labeling of Chemicals to improve chemical hazard 
     communication and to make recommendations to Congress.
       (2) Membership.--The Commission shall be composed of 13 
     members of whom--
       (A) 1 shall be the Secretary of Labor;
       (B) 1 shall be the Secretary of Transportation;
       (C) 1 shall be the Secretary of Health and Human Services;
       (D) 1 shall be the Administrator of the Environmental 
     Protection Agency;
       (E) 1 shall be the Chairman of the Consumer Product Safety 
     Commission; and
       (F) 8 shall be appointed by the Secretary of Labor, of 
     whom--
       (i) 2 shall be representatives of manufacturers of 
     hazardous chemicals, including a representative of small 
     businesses;
       (ii) 2 shall be representatives of employers who are 
     extensive users of hazardous chemicals supplied by others, 
     including a representative of small businesses;
       (iii) 2 shall be representatives of labor organizations; 
     and
       (iv) 2 shall be occupational safety and health 
     professionals with expertise in chemical hazard 
     communications.
       (3) Chair and vice-chair.--The members of the Commission 
     shall select a chair and vice-chair from among its members.
       (4) Duties.--
       (A) Study and recommendations.--The Commission shall 
     conduct a thorough study of, and shall develop 
     recommendations on, the following issues relating to the 
     global harmonization of hazardous chemical communication:
       (i) Whether the United States should adopt any or all of 
     the elements of the United Nation's Globally Harmonized 
     System of Classification and Labeling of Chemicals (referred 
     to in this subsection and the ``Globally Harmonized 
     System'').
       (ii) How the Globally Harmonized System should be 
     implemented by the Federal agencies with relevant 
     jurisdiction, taking into consideration the role of the 
     States acting under delegated authority.

[[Page S8701]]

       (iii) How the Globally Harmonized System compares to 
     existing chemical hazard communication laws and regulations, 
     including the Hazard Communication standard published at 
     section 1910.1200 of title 29, Code of Federal Regulations.
       (iv) A consideration of the impact of adopting the Globally 
     Harmonized System on the consistency, effectiveness, 
     comprehensiveness, timing, accuracy, and comprehensibility of 
     chemical hazard communication in the United States.
       (v) A consideration of the impact of adopting the Globally 
     Harmonized System on occupational safety and health in the 
     United States.
       (vi) A consideration of the impact of adopting the Globally 
     Harmonized System on tort, insurance, and workers 
     compensation laws in the United States.
       (vii) A consideration of the impact of adopting the 
     Globally Harmonized System on the ability to bring new 
     products to the market in the United States.
       (viii) A consideration of the cost and benefits of adopting 
     the Globally Harmonized System to businesses, including small 
     businesses, in the United States.
       (ix) Effective compliance assistance, training, and 
     outreach to help chemical manufacturers, importers, and 
     users, particularly small businesses, understand and comply 
     with the Globally Harmonized System.
       (B) Report.--Not later than 18 months after the date of 
     enactment of this Act, the Commission shall submit to the 
     appropriate committees of Congress a report containing a 
     detailed statement of the findings and conclusions of the 
     Commission, together with its recommendations for such 
     legislation as the Commission considers appropriate.
       (5) Powers.--
       (A) Hearings.--The Commission may hold such hearings, sit 
     and act at such times and places, take such testimony, and 
     receive such evidence as the Commission considers advisable 
     to carry out this section. The Commission shall, to the 
     maximum extent possible, use existing data and research to 
     carry out this section.
       (B) Information from federal agencies.--The Commission may 
     secure directly from any Federal department or agency such 
     information as the Commission considers necessary to carry 
     out this section. Upon request by the Commission, the head of 
     such department or agency shall promptly furnish such 
     information to the Commission.
       (C) Postal services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as other departments and agencies of the Federal Government.
       (6) Personnel matters.--
       (A) Compensation; travel expenses.--Each member of the 
     Commission shall serve without compensation but shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (B) Staff and equipment.--The Department of the Labor shall 
     provide all financial, administrative, and staffing 
     requirements for the Commission including--
       (i) office space;
       (ii) furnishings; and
       (iii) equipment.
       (7) Termination.--The Commission shall terminate on the 
     date that is 90 days after the date on which the Commission 
     submits the report required under paragraph (3)(B).
       (8) Authorization of appropriations.--There are authorized 
     to be appropriated to the Department of Labor, such sums as 
     may be necessary to carry out this subsection.
       (c) Hazard Communication Demonstration Projects.--
       (1) In general.--Section 20(a) of the Act (29 U.S.C. 
     670(a)) is amended by adding at the end the following:
       ``(8) Subject to the availability of appropriations, the 
     Secretary of Health and Human Services, after consultation 
     with the Secretary, shall award grants to one or more 
     qualified applicants in order to carry out a demonstration 
     project to development, implement, or evaluate strategies or 
     programs to improve chemical hazard communication in the 
     workplace through the use of technology, which may include 
     electronic or Internet-based hazard communication systems.''.
       (2) Authorization of appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     the amendment made by paragraph (1).

     SEC. 13. CRIMINAL PENALTIES.

       Subsection (e) of section 17 of the Act (29 U.S.C. 666(e)) 
     is amended--
       (1) by striking ``fine of not more than $10,000'' and 
     inserting ``fine in accordance with section 3571 of title 18, 
     United States Code'';
       (2) by striking ``six months'' and inserting ``18 months'';
       (3) by striking ``fine of not more than $20,000'' and 
     inserting ``fine in accordance with section 3571 of title 18, 
     United States Code''; and
       (4) by striking ``1 year'' and inserting ``3 years''.
                                  ____

                                                   March 15, 2004.
     Re hearing on Hazard Communication (MSDS) March 25, 2004.

     Hon. Michael B. Enzi,
     Washington, DC.
       Dear Senator Enzi: Honorable Senators, staff and witnesses, 
     it is an honor for me to have a small part in this most 
     important hearing. I am very proud to have worked with you 
     great statesmen over the years to better safety and health 
     for our great American workers. Your work today in this 
     hearing could be the most important advancement of OSHA's 
     mission ever undertaken and more importantly provide 
     guidance, leadership and much needed closer oversight to a 
     slow moving, backward agency.
       No other standard or regulation in OSHA's responsibility 
     covers or protects workers as much as the Hazard 
     Communication standard does and especially the MSDS section 
     of this standard. MSDS effects every worker everyday on every 
     job. Other standards cover many issues for the workers but 
     the MSDS paperwork is used millions of times each workday, 
     and the accuracy of these sheets or of paramount importance 
     for the complete protection of our most important resource 
     our great American workers.
       These men and women work and toil everyday to bring a 
     better way of life for us all, they deserve to go home safe 
     and sound everyday, to have the opportunity to live a long 
     and happy life, free of injury and sickness. No one should 
     die, be hurt or made sick at work.
       I can only pray that you will be so moved by God today, to 
     make the much needed changes to this problem and find new 
     ways to make sure all MSDS sheets are readable, 
     understandable and correct. Education and information is the 
     key, please help make the changes that will protect all of 
     our workers all the time.
       Please forgive me for being absent today but I look forward 
     to working with you and this great committee in the future. I 
     know in my heart you will do the right thing today and am 
     confident new changes and new protection will come from this 
     hearing. God Bless and thank you for your courageous stand 
     for all American workers.
           Yours,
                                                        Ron Hayes.
                                 ______