[Senate Report 104-308]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 483
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-308
_______________________________________________________________________


 
       OCCUPATIONAL SAFETY AND HEALTH REFORM AND REINVENTION ACT

                                _______
                                

                 June 28, 1996.--Ordered to be printed

_______________________________________________________________________


   Mrs. Kassebaum, from the Committee on Labor and Human Resources, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 1423]

    The Committee on Labor and Human Resources, to which was 
referred the bill S. 1423 to amend the Occupational Safety and 
Health Act of 1970 to make modifications to certain provisions, 
and for other purposes, having considered the same, reports 
favorably thereon with amendments and recommends that the bill, 
as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Background and need for the legislation..........................4
III. Legislative history and committee action........................17
 IV. Explanation of bill and committee views.........................22
  V. Cost estimate...................................................41
 VI. Regulatory impact statement.....................................44
VII. Section-by-section analysis.....................................44
VIII.Additional views................................................47

 IX. Minority views..................................................50
  X. Changes in existing law.........................................74

                               I. Purpose

    The OSHA Reform and Reinvention Act, S. 1423, will improve 
workplace safety by updating and retooling our basic Federal 
workplace safety law, the Occupational Safety and Health Act of 
1970 (OSHA). The bipartisan legislation will provide greater 
protection for workers, more flexibility for employers, and 
increased efficiency for the Federal agency designated to 
oversee and implement our Federal workplace safety policy.
    The OSH Act of 1970 imposed a duty on all employers to 
establish and maintain a safe workplace. Like many programs 
enacted during the ``era of big government,'' the legislation 
created a Federal agency--the Occupational Safety and Health 
Administration--within the U.S. Department of Labor to write 
health and safety standards applicable to all workplaces. The 
Congress then delegated responsibility to the OSH 
Administration to enforce these standards through random 
inspections and inspections conducted in response to worker 
complaints.
    Both the Congress and the Clinton administration recognized 
that OSHA needs improvement. The U.S. Senate Committee on Labor 
and Human Resources has held hearings on OSHA reform for the 
past 5 years, and the Clinton administration began a major OSHA 
reinvention initiative in 1995.
    Underlying these efforts was an understanding that OSHA's 
basic command and control structure--uniform, one-size-fits-all 
regulations written at headquarters and enforced through mass 
inspection--was no longer appropriate. The inflexible system 
led the agency to become too focused on punishing employers for 
paperwork violations rather than on the ultimate goal of 
improved workplace safety. Firms were frustrated that 
inspectors failed to differentiate between serious hazards and 
mere technical noncompliance, and from a practical viewpoint, 
given our limited resources, mass inspection was simply not 
possible.
    The Administration appeared to recognize this reality. In 
the Labor Department's OSHA reinvention blueprint, the 
Administration stated:

          Not all workplaces are alike; not all employees are 
        equally responsible. Yet too often, today's regulatory 
        scheme applies a ``one-size-fits-all'' approach that 
        treats all workplaces and all hazards equally. In the 
        most significant reform unveiled in this report, OSHA 
        will take steps to treat employers who have aggressive 
        safety and health programs differently from employers 
        who lack such efforts. * * * For firms with strong and 
        effective health and safety programs [OSHA offers] 
        partnership. * * * For firms that do not implement 
        strong and effective health and safety programs [OSHA 
        offers] traditional enforcement.\1\
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    \1\ ``The New OSHA: Reinventing Worker Safety and Health,'' 
National Performance Review, May 1995, p. 3-4 (hereinafter The New 
OSHA), reprinted in Hearing of the Senate Committee on Labor and Human 
Resources, ``Occupational Safety and Health Reform and Reinvention Act, 
S. 1423,'' 104th Cong., 1st Sess., S. Hrg. 104-353 (November 29, 1995), 
p. 63 (hereinafter S. Hrg. 104-353).

    Implementing this ``partnership'' approach nationally, the 
Administration stated that ``the key to success is encouraging 
employers to work with their employees in hazard identification 
and safety awareness, rather than have those workers depend 
solely on OSHA inspectors.'' \2\
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    \2\ ``The New OSHA,'' cited in S. Hrg. 104-353, p. 64.
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    The OSHA Reform and Reinvention Act, S. 1423, implements 
the Administration's reinvention effort and provides OSHA with 
the tools to respond to a new workplace environment. 
Recognizing that Federal safety inspectors cannot inspect every 
workplace, the bill provides positive incentives for employers 
to address health and safety on their own. Employers with 
effective safety and health programs, or that utilize 
certified, third-party consultants for workplace safety audits, 
would be exempt from random OSHA inspections and would 
experience lower OSHA fines issued in response to a worker 
complaint. These positive incentives move OSHA away from the 
command-and-control, punitive enforcement mode that has plagued 
the agency since the mid-1970s.
    Moreover, the legislation permanently authorizes and 
codifies two important programs that have heretofore been 
implemented by regulation and funded through annual 
appropriations: the onsite consultation program, where safety 
consultants provide employers with the information they need to 
comply with the law without fines or penalties, and the 
Voluntary Protection Program (VPP), where OSHA recognizes work 
sites for their extraordinary commitment to health and safety. 
Both of these programs demonstrate a renewed commitment to 
promoting a cooperative, nonadversarial relationship between 
OSHA and the employer community.
    The legislation also removes significant legal barriers 
that Federal labor law places in the way of legitimate employee 
participation in health and safety matters. Workers deal with 
workplace hazards firsthand every day, yet the National Labor 
Relations Act prohibits worker-management safety committees in 
nonunion settings. Senate bill 1423 removes this obstacle to 
improved workplace safety so workers and managers may address 
safety issues on their own, without relying on OSHA inspectors.
    The committee recognizes that OSHA's enforcement capability 
must be credible for the agency to remain effective. While 
positive incentives encourage workers and firms to improve 
workplace safety without relying on government intervention, 
OSHA may devote its own scarce resources toward the worst 
hazards in the most dangerous workplaces. The bill accomplishes 
this goal in three ways.
    First, the OSHA reform bill maintains the agency's 
``egregious penalty policy,'' where OSHA multiplies the $70,000 
maximum penalty for a ``willful'' violation by the number of 
employees exposed to the hazard, thereby levying multimillion 
dollar fines on the worst violators. Although some recommended 
eliminating this policy, the committee did not take this action 
in order for OSHA to maintain a credible deterrent capability.
    Second, the bill changes OSHA's penalty structure for 
violations of our health and safety laws. The committee expects 
OSHA inspectors to focus on real hazards rather than on 
paperwork compliance, yet current law maintains the same 
maximum fine for both serious and nonserious violations 
($7,000). Senate bill 1423 reduces fines for nonserious hazards 
from the maximum of $7,000 to $100 so our Federal safety laws 
differentiate between serious and nonserious violations. The 
reform bill also prohibits fines for first time, nonserious 
paperwork or posting violations.
    Finally, the legislation changes OSHA's complaint process 
to give inspectors greater discretion to investigate complaints 
by phone or fax, rather than conducting onsite inspections for 
every formal written complaint the agency receives. Last year, 
OSHA inspectors wasted over 100,000 hours of inspector time 
responding to complaints where there were no serious hazards. 
Clearly, given its limited resources, OSHA must deploy its 
enforcement personnel more efficiently in the future.
    In sum, the Nation's Federal workplace safety law needs to 
be retooled to deal with the changing environment. The 
committee believes that the OSH Act must recognize and 
encourage private sector initiatives to improve occupational 
safety, while at the same time refocusing government resources 
on the most serious hazards at the most dangerous work sites.

              II. Background and Need for the Legislation

    Congress enacted the Occupational Safety and Health Act in 
1970. The statute created an agency within the U.S. Department 
of Labor--the Occupational Safety and Health Administration--to 
establish and enforce national health and safety standards 
applicable to all work sites. Under the statute, OSHA 
inspectors conduct random inspections, respond to complaints, 
and investigate work sites after accidents occur.
    Evidence of OSHA's effectiveness has been mixed. Although 
some have argued that fatality rates declined over the past 30 
years due to enlightened management, higher workers' 
compensation costs, and a shift away from manufacturing and 
toward service sector jobs,3 OSHA argued that its health 
and safety standards, particularly in the area of lead 
exposure, trench cave-ins and cotton dust, have saved 
lives.4
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    \3\ Summarizing the research on OSHA's effectiveness, one author 
noted:

      Indeed, a casual inspection of the data suggests that 
      OSHA's impact on injury and fatality rates has been 
      limited. Figure 1 [chart showing workplace fatalities from 
      1933-1992, compiled by the National Safety Council, 
      Accident Facts, 1993 ed., Itasca, IL] shows that the 
      workplace fatality rate has been declining for years, with 
      little impact from the creation of OSHA. Figure 2 [chart 
      showing workplace injury and illnesses from 1972-1994, 
      compiled by the U.S. Department of Labor, Bureau of Labor 
      Statistics] shows that unlike fatality rates, injury rates 
      do not show a significant decline over time. Rather the 
      pattern of lost workday injuries has closely followed the 
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      business cycle since the early 1970s.

  Max Lyons, ``The Economics of Workplace Safety,'' Employment Policy 
Foundation, 1996, p.34.
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    \4\ See testimony of Joseph Dear before the Senate Committee on 
Labor and Human Resources, ``OSHA Reform,'' S. Hrg. 104-116, June 21-
22, 1995, p. 89-90 (hereinafter S. Hrg. 104-116) and testimony of Linda 
Chavez-Thompson, AFL-CIO, before the Senate Committee on Labor and 
Human Resources, S. Hrg. 104-353, p. 37 (``Since the [OSHA] law's 
passage, the workplace fatality rate has been cut in half; injury rates 
have decreased. * * *'').
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    Despite disagreement over the effectiveness of OSHA, 
committee members as well as the witnesses testifying before 
the committee during the two days of oversight hearings on June 
21-22, 1995 agreed that our Federal workplace safety policy, 
including the agency (OSHA) with responsibility for 
implementing the policy, required reform. OSHA's assistant 
secretary, Joseph Dear, told the committee:

          I want to be very forthright and candid about the 
        need to change the agency's culture. When I came to 
        OSHA, I fully recognized that in the past, the agency 
        had at times lost sight of its mission, focusing too 
        much on procedures that appeared adversarial and nit-
        picky, and not enough on saving lives and preventing 
        injuries. I knew that proceeding with ``business as 
        usual'' could well put us out of business altogether. 
        But if there is one single message you take away from 
        this hearing today, I hope it is this: that OSHA is 
        changing the way it does business.5
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    \5\ S. Hrg. 104-116, p.131.

    Senator Dodd commented that while ``OSHA has made a great 
deal of progress in the quest for injury-free workplaces, [a]ll 
of its actions have not been perfect * * * [and] there is 
always room for improvement.'' 6 Joining in agreement, 
Senator Gregg advocated ``mov[ing] down this road of trying to 
make OSHA work better. Nobody is suggesting that we terminate 
it; what we are talking about here is how we can make it 
address the issues of safety in a more constructive way and 
contribute to the concerns that lead to injuries versus 
contributing to the concerns that lead to bureaucracy.'' 7
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    \6\ S. Hrg. 104-116, p. 125.
    \7\ S. Hrg. 104-116, p. 11.
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                 Separate the Good Actors from the Bad

    Similarly, committee members and witnesses expressed 
consensus on the changes OSHA needed to make. Mr. Dear 
testified that OSHA was engaged in a ``reinvention'' initiative 
``designed to make major changes in the culture of OSHA's 
performance.'' Mr. Dear told the committee:

          [S]ome employers believe that OSHA's enforcement 
        approach is too confrontational. To address this 
        concern, OSHA is changing its fundamental operating 
        model from one of command and control to one that 
        provides employers with a real choice between a 
        cooperative partnership and a traditional enforcement 
        relationship. This change is designed to separate good 
        actors from bad actors in the safety and health arena, 
        and to treat them differently.8
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    \8\ S. Hrg. 104-116, p. 131.

    Emphasizing his commitment to ``changing the way OSHA does 
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business,'' Mr. Dear summarized his testimony as follows:

          At the heart of our effort is a simple principle: 
        develop a broad range of interventions, and treat good 
        actors differently from bad actors. For employers who 
        have made safety and health a priority, and who are 
        looking for a cooperative partnership, offer 
        incentives, compliance assistance, training and 
        education, and recognize their efforts. But for those 
        employers who disregard their workers' safety and 
        health (and unfortunately some still do), retain a 
        strong traditional enforcement program.9
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    \9\ S. Hrg. 104-116, p. 132.

    Committee members and witnesses agreed with Mr. Dear that 
OSHA currently failed to differentiate between companies making 
a sincere effort to address workplace safety and those that did 
not. Senator Simon commented that ``[a] complaint that I have 
to believe probably has some legitimacy is that [OSHA] spend[s] 
a disproportionate amount of time with companies that are doing 
a good job. * * *'' 10
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    \10\ S. Hrg. 104-116, p. 15-16.
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    Vernon Rose, president of the American Industrial Hygiene 
Association and a witness invited by the minority, believed 
``companies that are taking responsibility for themselves and 
making changes in the workplace could be recognized by OSHA as 
good faith employers,'' \11\ Similarly, Ray Montaigne, a safety 
professional testifying for the Associated Builders and 
Contractors, told the committee: ``If OSHA is to be effective, 
then it needs to be a partner to those companies that make a 
sincere effort and reserve the policeman tactics for companies 
that do not make the effort to have a safe workplace.'' \12\
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    \11\ S. Hrg. 104-116, p. 28.
    \12\ S. Hrg. 104-116, p. 6.
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    Senator Dodd praised the Clinton administration's 
reinventing government program that did away with the ``one-
size-fits-all'' view toward regulation. Senator Dodd noted that 
``OSHA is now offering employers the option of working in 
partnership with it to create a safe and productive work 
environment. The agency also now provides incentives for 
businesses that have good records on complying with safety 
regulations.'' \13\
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    \13\ S. Hrg. 104-116, p. 125.
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                           Limited Resources

    There also was agreement that Federal Government resources 
were limited. OSHA's assistant secretary told the committee 
that his agency ``has a frequency of inspection of once every 
23 years for hazardous workplaces.'' \14\ The AFL-CIO submitted 
a table to the committee, printed in the hearing record, 
indicating the range of years--from 18 years in Oregon to 247 
years in South Dakota--needed for OSHA to inspect all job sites 
in the United States.\15\
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    \14\ S. Hrg. 104-116, p. 94.
    \15\ S. Hrg. 104-353, p. 130.
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    Given its limited resources, witnesses presented numerous 
suggestions to improve OSHA's effectiveness. Joseph Kinney, 
director of the National Safe Workplace Institute, testified 
that safety awareness and education are probably the most 
important ways to improve workplace injury records. According 
to Mr. Kinney:

          If you look at safety, there are many different 
        issues that impact it, Government being just one. 
        Others are certainly insurance--litigation, ethics, 
        morality, values and education. In fact, if I had to 
        choose one, I would say that probably education is the 
        one that is going to make the difference because by 
        informing people, we will have a higher value for 
        safety and health.\16\
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    \16\ S. Hrg. 104-116, p. 23.

    Perhaps for that reason, David Whiston, president of the 
American Dental Association, advocated reinventing OSHA ``to 
emphasize consultation and training instead of penalties and 
punitive measures.'' \17\ Dr. Whiston also believed that the 
agency's enforcement personnel should issue warnings in lieu of 
citations for first-time violations to promote abatement of 
hazards rather than penalties.
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    \17\ S. Hrg. 104-116, p. 108.
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    The committee also heard testimony from Duane Guy, acting 
director of labor management relations in the Kansas Department 
of Human Resources and director of the onsite consultation 
program in Kansas. Under that program, small employers receive 
advice, without fear of citations or fines, on how to improve 
workplace safety and also to comply with OSHA requirements. The 
Federal Government pays for 90 percent of the program.
    Reminding the committee that OSHA had limited resources for 
enforcement as well as consultation and education, OSHA 
Assistant Secretary Joseph Dear informed the committee that his 
agency's reinvention effort was designed to leverage his 
resources. According to the OSHA official:

          I believe that with a credible enforcement program, 
        we will increase the demand for voluntary assistance 
        and that as we create other ways to develop incentives 
        to encourage employers, like our nationalization of the 
        ``Maine 200'' concept and the focused inspection 
        concept, that we will find opportunities to leverage 
        resources to get much greater improvement than we could 
        get if we only relied on enforcement.\18\
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    \18\ S. Hrg. 104-116, p. 104.
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                private sector, third-party consultants

    Two years before the Administration published its ``New 
OSHA'' reinvention document, Vice President Al Gore's National 
Performance Review, ``From Red Tape to Results: Creating a 
Government that Works Better and Costs Less,'' suggested using 
market mechanisms to improve health and safety. The vice 
president's report recognized that with limited government 
resources, there was no way for OSHA inspectors to visit every 
work site to enforce OSHA standards.
    Accordingly, the report stated:

          [N]o army of OSHA inspectors need descend upon 
        corporate America. The health and safety of American 
        workers could be vastly improved--without bankrupting 
        the Federal treasury.
          The Labor Secretary already is authorized to require 
        employers to conduct certified self-inspections. OSHA 
        should give employers two options with which to do so: 
        They could hire third parties, such as private 
        inspection companies; or they could authorize non-
        management employees, after training and certification, 
        to conduct inspections. In either case, OSHA would set 
        inspection and reporting standards and conduct random 
        reviews, audits, and inspections to ensure quality. 
        (Emphasis added).\19\
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    \19\ Albert Gore, Report of the National Performance Review, 1993, 
p. 63.

    Mr. Vernon Rose, president of the American Industrial 
Hygiene Association, testified in support of using third party 
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certification. Specifically, Mr. Rose told the committee:

          * * * we also believe that OSHA should have a scheme 
        for third-party assistance. * * * There are more than 6 
        million workplaces in the United States that are under 
        the jurisdiction of OSHA. Currently, there are about 
        2,400 compliance officers, both State and Federal. It 
        is obvious that all of these workplaces are not going 
        to be visited by compliance officers.
          OSHA's goal should be that every employer have an 
        assessment of safety and health in their workplace, 
        conducted by a competent health and safety 
        professional. In view of limited resources, and with 
        due respect to the 7(c)(1) program that Mr. Guy 
        represents, we need to have additional resources made 
        available for these workplace assessments.
          The consultants should come from the private sector 
        and from the professional organizations. * * * \20\
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    \20\ S. Hrg. 104-116, p. 24-25.

    Mr. Joseph Kinney, from the National Safe Workplace 
Institute, concurred with Mr. Rose on the use of third parties 
to conduct workplace safety audits. Mr. Kinney told the 
committee: ``I agree with the whole idea of third-party 
certification.'' \21\
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    \21\ S. Hrg. 104-116, at p. 29.
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    Synthesizing the Administration's reinvention materials and 
the testimony of Mr. Dear and other witnesses, the committee 
concluded that OSHA must be improved and must refocus and 
leverage its limited resources by differentiating between safe 
and unsafe workplaces. The agency also must change its emphasis 
toward education and consultation, particularly with firms that 
demonstrate a commitment to health and safety, by providing 
positive incentives for firms to address health and safety. 
Finally, OSHA must maintain a credible enforcement capability.

                          positive incentives

    Several witnesses, including OSHA Assistant Secretary 
Joseph Dear, provided examples of positive incentives that OSHA 
could recognize. For instance, OSHA offered firms a choice of 
``partnership'' or ``traditional enforcement'' depending upon 
the firms' level of commitment to health and safety, as 
demonstrated by establishing a health and safety program. Mr. 
Dear described OSHA's Maine 200 program, which rewarded 
employers with health and safety programs with inspection 
exemptions, higher priority for assistance, regulatory relief 
and penalty reductions.
    In its ``New OSHA'' reinvention document, which described 
the nationwide expansion of OSHA's Maine 200 program, the 
Administration stated:

          At its core, this new approach [partnership versus 
        traditional enforcement] seeks to encourage the 
        development of work site health and safety programs. In 
        a health and safety program, employers and employees 
        work together to find the best solutions to the 
        particular problems of their workplace. OSHA will be 
        looking for programs with these features: management 
        commitment, meaningful participation of employees, a 
        systematic effort to find safety and health hazards 
        whether or not they are covered by existing standards, 
        documentation that the identified hazards are fixed, 
        training for employees and supervisors, and ultimately 
        a reduction in injuries and illnesses.
          To spur the spread of these programs, employers will 
        be offered a clear choice:
          For firms with strong and effective health and safety 
        programs: partnership. OSHA recognizes that many, if 
        not most, employees are interested in protecting the 
        safety of their workers. Those who choose to work with 
        their employees and with OSHA in reducing injuries and 
        illnesses will find OSHA to be a willing partner. For 
        fully committed employers who are truly exceptional in 
        eliminating hazards and reducing injuries and 
        illnesses, OSHA will provide special recognition 
        including the lowest priority for enforcement 
        inspections (which, given remaining priorities, means 
        that inspections will be quite rare.); and the highest 
        priority for assistance, appropriate regulatory relief, 
        and penalty reductions of up to 100 percent. (Emphasis 
        added.) \22\
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    \22\ S. Hrg. 104-353, p. 63.

    OSHA's Maine 200 program, described above, provided 
positive incentives to encourage firms to address health and 
safety on their own. Those companies were rewarded with 
inspections that would be ``quite rare'' and dramatically 
reduced penalties if a violation were discovered through a 
complaint or after an accident. According to the Administration 
``The key to success is encouraging employers to work with 
their employees in hazard identification and safety awareness, 
rather than have those workers depend solely on OSHA 
inspectors.'' \23\
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    \23\ ``The New OSHA'', p. 4, cited in S. Hrg. 104-353, p. 64.
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    Vernon Rose of the Industrial Hygiene Association concurred 
that OSHA should adopt positive incentives for firms to 
establish health and safety programs. Mr. Rose testified that 
``OSHA's responsibility should be to develop compliance schemes 
with incentives to encourage the widest possible acceptance and 
implementation of health and safety programs in the 
workplace.'' \24\
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    \24\ S. Hrg. 104-116, p. 25. Mr. Rose also testified that firms 
should be encouraged to audit their workplaces for safety problems. 
According to Mr. Rose:

      Employers should be encouraged to perform self audits or to 
      hire third-party reviewers to analyze company health and 
      safety management systems. Self-inspections and audits are 
      one of the essential tools for employers to maintain 
      effective health and safety programs. This would help 
      achieve the OSHA mission of improving health and safety. To 
      promote the use of audits, some form of legal and 
      regulatory protection for the employer is needed. * * * (S. 
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      Hrg. 104-116, p. 46.)

    The committee noted that OSHA already offers two programs--
the consultation program and the Voluntary Protection Program 
(VPP)--to encourage firms to establish health and safety 
programs. OSHA's Safety and Health Achievement Recognition 
Program (SHARP) part of the consultation service, ``provides 
incentives and support to smaller, high-hazard employers to 
work with their employees to develop, implement, and 
continuously improve the effectiveness of their workplace 
safety and health programs.'' \25\
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    \25\ OSHA Instruction TED 3.5A, Chapter X, p. 1.
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    OSHA described SHARP as a method to provide ``public 
recognition of employers and employees who have worked together 
successfully to establish exemplary safety and health 
programs.'' \26\ Firms must have a ``lost workday injury rate 
above the average for their industry or be an industry that is 
on OSHA's high-hazard list'' to be eligible to enter the 
program.\27\
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    \26\ Id.
    \27\ Id., p. X-2. 
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    Firms that undergo a review of their work site by a safety 
consultant, establish a comprehensive health and safety program 
that includes employee involvement, correct all identified 
hazards, and lower their lost workday injury rate ``to or below 
the national average for their injury'' were removed from 
OSHA's general inspection schedule.\28\
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    \28\ Id., p. X-3. See S. Hrg. 104-116, p. 31-32.
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    A representative of the VPP program, Mr. James Andrews of 
DOW Chemical Co., testified that ``VPP recognize[s] worksites 
for achieving and maintaining excellence in worker safety and 
health protection.'' \29\ Firms in the VPP that establish 
comprehensive safety programs and meet safety benchmarks also 
are exempt from regular, programmed OSHA inspections. According 
to Mr. Andrews, exempting VPP sites from general inspections 
permits ``OSHA [to] concentrate its enforcement efforts where 
they are needed. * * *'' \30\
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    \29\ S. Hrg. 104-116, p. 33.
    \30\ Id., p. 34.
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    Mr. Joseph Kinney of the National Safe Workplace Institute 
supported positive incentives for firms to address workplace 
safety. According to Mr. Kinney, ``I think there are incentives 
that could be used, like third-party certification, that could 
be tied to an assessment process.'' \31\ He also believed 
``that third-party certification could be something that could 
be adopted into statute fairly quickly, even by itself, without 
a major overhaul. I certainly think it would go a long way or 
be a meaningful step toward encouraging more confidence by 
business in Government.'' \32\
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    \31\ S. Hrg. 104-116, p. 28.
    \32\ Id., p. 30.
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                           State initiatives

    The committee was also aware of State initiatives to 
improve safety and health. For instance, Governor Paris 
Glendening of Maryland formed an Occupational Safety and Health 
Task Force as part of his Regulatory Review Initiative to 
improve the delivery of occupational safety services in 
Maryland, a State-plan State for OSHA purposes. The task force 
recommended improving the effectiveness of the consultation and 
training programs, as well as increasing the availability of 
incentive-based compliance programs.
    Significantly, representatives from labor, industry and 
government served on the task force. Union representatives 
included the United Food and Commercial Workers (UFCW) Local 
27, the Firefighters Association, the Amalgamated Transit 
Union, International Brotherhood of Electrical Workers Local 
24, United Auto Workers Local 354, and the president and the 
safety committee chairman of the Maryland State & DC AFL-CIO. 
Business representatives included Bethlehem Steel, GM Truck and 
Micro Machining. The Democrat-appointed Commissioner of the 
Maryland Department of Labor and Industry also served on the 
task force.
    According to the task force's final report:

          The Task Force considered a number of Incentive-Based 
        Cooperative Programs designed to serve two 
        complementary purposes. Programs that encourage and 
        reward a commitment to safety and health accomplish the 
        dual goals of increasing safety for workers, while 
        freeing MOSH [Maryland Occupation Safety and Health] 
        staff to concentrate on noncomplying employers. * * * 
        The Task Force recommends that MOSH continue these 
        efforts to reward employers who have superior or 
        effective health and safety programs.\33\

    \33\ Task Force Report, Nov. 21, 1994, p. 7.

    One effort to reward firms with health and safety programs 
was the ``Consultation Partnership Program,'' where employers 
with a ``strong'' commitment to occupational safety were 
``removed from general schedule inspections lists for a period 
of up to 2 years.'' \34\ To qualify, firms must participate in 
a health and safety consultation, maintain all the core 
elements of a safety program, and address all hazards 
identified during the consultation in a timely manner. The Task 
Force also recommended that this program, including the 
inspection exemption, be available to smaller employers that 
lack the resources to participate in the Maryland State-plan 
equivalent of the VPP program.\35\
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    \34\ Task Force Report, p. 9.
    \35\ Task Force Report, p. 9.
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                          employee involvement

    To promote health and safety programs, OSHA Assistant 
Secretary Joseph Dear and other witnesses testifying on behalf 
of workplace safety organizations underscored the importance of 
employee involvement. In its OSHA reinvention initiative, the 
Administration wrote: ``Employer commitment and meaningful 
employee participation and involvement in safety and health is 
a key ingredient in effective programs.'' \36\
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    \36\ ``The New OSHA,'' p. A-1, Appendix A--``OSHA's Principles for 
Protecting America's Workers,'' cited in S. Hrg. 104-353, p. 71.
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    In fact, in order to qualify for the inspection exemption 
under the Administration's reinvention program (similar to the 
Maine 200 program), as well as VPP and SHARP, employers must 
maintain a health and safety program that included employee 
involvement.
    The Administration noted as part of its reinvention program 
that it would actively promote employee involvement. ``OSHA 
will promote worker participation in efforts to achieve safe 
and healthful workplaces. * * * Workers possess a keen 
awareness of hazards to which they are exposed. Many workplaces 
have tapped into this important resource and achieved 
successful results with innovative approaches that involve 
safety and health programs and cooperative efforts between 
management and workers.'' \37\
---------------------------------------------------------------------------
    \37\ ``The New OSHA,'' p. 5, cited in S. Hrg. 104-353, p. 65.
---------------------------------------------------------------------------
    In fact, OSHA's Augusta, ME, Area Office issued a guidance 
statement, CPL 2.1A, on its Maine 200 Program encouraging 
employers to establish safety programs that included employee 
involvement. During the Senate Committee on Labor and Human 
Resources hearing on OSHA reform, OSHA Assistant Secretary Dear 
spoke favorably of the Maine 200 initiative.\38\
---------------------------------------------------------------------------
    \38\ S. Hrg. 104-116, p. 91.
---------------------------------------------------------------------------
    In Maine 200, OSHA encouraged the top 200 employers in 
Maine that experienced the greatest number of serious workplace 
injuries and illnesses to establish a health and safety program 
that included employee involvement. OSHA indicated that it 
would seek to determine whether the health and safety program 
had ``provisions for employee involvement in safety and health 
matters. An employee safety and health committee is the 
preferred method, but equivalent systems will be considered by 
the AAO on an individual basis.'' \39\
---------------------------------------------------------------------------
    \39\ Augusta Area Office Instruction CPL 2.1A, June 25, 1993, p. 7.
---------------------------------------------------------------------------

                              Enforcement

    Some witnesses before the Senate Committee on Labor and 
Human Resources also noted the continuing importance of OSHA's 
enforcement program. OSHA Assistant Secretary Dear told the 
committee that for employers ``who disregard their workers' 
health and safety,'' OSHA needed to maintain a ``strong 
enforcement program.'' \40\ Part of that ``credible enforcement 
program'' included the egregious penalty policy, where OSHA 
multiplied the penalty times the number of workers who were 
exposed to the hazard. The policy permitted OSHA to generate 
multimillion dollar fines for safety and health violations.
---------------------------------------------------------------------------
    \40\ S. Hrg. 104-116, p. 92.
---------------------------------------------------------------------------
    Mr. Ron Hayes, whose son was killed in a corn silo at 
Showell Farms in Florida, testified that OSHA had inspected 
Showell Farms 20 times over the last 18 years, yet safety 
problems in the corn silo at the poultry processor 
remained.\41\ Mr. Hayes was looking for some accountability 
from OSHA. He wanted OSHA to follow its own procedures in 
investigating and citing the employer for his son's death.
---------------------------------------------------------------------------
    \41\ S. Hrg. 104-116, at p. 3.
---------------------------------------------------------------------------
    And Mr. Hayes asked Senator Gregg what should be done for 
employers that repeatedly violate Federal safety standards. 
Senator Gregg replied, ``I think you get very aggressive with 
those companies.'' \42\
---------------------------------------------------------------------------
    \42\ S. Hrg. 104-116, at p. 13.
---------------------------------------------------------------------------
    Witnesses before the committee were not opposed to OSHA 
enforcement of legitimate hazards. Instead, William Steinmetz 
from the National Roofing Contractors Association expressed 
concern that 12 of the top 20 OSHA citations for 1994 were for 
paperwork violations.\43\ In the hearing record, the committee 
noted that OSHA issued a ``serious'' citation to a company in 
Illinois for failing to properly maintain a written Hazard 
Communication Program for automatic dishwashing detergent.\44\ 
In addition, Senator Kassebaum noted that a Kansas electrical 
contractor was fined $250 for not signing his injury and 
illness log and another $250 for not posting his OSHA 
poster.\45\
---------------------------------------------------------------------------
    \43\ S. Hrg. 104-116, at p. 107.
    \44\ S. Hrg. 104-116, at p. 150.
    \45\ S. Hrg. 104-116, at pp. 1, 79.
---------------------------------------------------------------------------
    OSHA's assistant secretary, Joseph Dear, testified that the 
current enforcement system had problems. According to Mr. Dear: 
``The instances that you [Senator Gregg] cite, that the 
chairman cited [involving the Kansas electrical contractor] of 
employers being penalized for a poster violation or for not 
having an injury log signed, those are the kinds of problems 
that I am trying to correct because they do undermine support 
for the purpose of the act, which is to save lives.'' \46\
---------------------------------------------------------------------------
    \46\ S. Hrg. 104-116, at p. 94.
---------------------------------------------------------------------------
    When Senator Gregg asked Mr. Dear whether he supported 
creating a ``nonserious violation structure'' and ``warnings in 
lieu of a citation structure'' for paperwork violations, Mr. 
Dear responded that he could do that without amending the 
statute. But he also seemed to suggest that he recognized that 
these paperwork and other nonserious citations were a problem. 
In Mr. Dear's view, ``[T]hat is one of the things we are 
accomplishing with the initiatives announced by President 
Clinton.'' \47\
---------------------------------------------------------------------------
    \47\ S. Hrg. 104-116, p. 94.
---------------------------------------------------------------------------
    The committee noted that the State of Maryland, through its 
Task Force on Occupational Safety and Health, had investigated 
possible changes to its enforcement program that were similar 
to the suggestions raised by Senator Gregg. For ``other-than-
serious'' violations, the Task Force recommended that employers 
with excellent safety and health programs would not be cited or 
penalized for violations corrected during the course of an 
inspection. And for ``other-than-serious'' violations that were 
corrected within a ``reasonable period of time,'' the citation 
or penalty would be waived.\48\
---------------------------------------------------------------------------
    \48\ Task Force Report, p. 10.
---------------------------------------------------------------------------
    Senator Gregg was particularly interested in these 
enforcement issues. He testified during the committee's OSHA 
reform hearing in 1995 that one of his constituents in New 
Hampshire was fined $975 in the winter of 1993 for having pot 
holes in the parking lot. Another constituent was fined $300 
because an electrical fan he purchased did not have three-
pronged electrical plugs.\49\
---------------------------------------------------------------------------
    \49\ S. Hrg. 104-116, p. 85. During the committee's joint hearing 
with the Senate Committee on Small Business, Earl Bradley, president of 
EBAA Iron, Inc. of Texas, related similar frustrating experiences with 
OSHA. Mr. Bradley testified that his company was cited $1,000 for sand 
on the floor of his iron foundry (OSHA alleged the sand was a tripping 
hazard), $1,500 for a guardrail that OSHA alleged was too low (even 
though the lower rail made it easier to pour molten iron into the 
molds) and $3,500 for failure to require employees to wear steel-toed 
shoes even though such shoes can increase the risk of injury to 
workers. (S. Hrg. 104-316, p. 161.)
---------------------------------------------------------------------------
    Senator Gregg also noted that institutionally, OSHA was not 
necessarily focused on eliminating workplace hazards. For 
example, Senator Gregg cited OSHA's fiscal year 1994 goals, 
titled ``Saving Lives, Preventing Injuries, Protecting the 
Health of American Workers,'' where OSHA listed among its goals 
to increase inspections by 5 percent and to increase penalties 
by 5 percent.\50\
---------------------------------------------------------------------------
    \50\ S. Hrg. 104-116, p. 85.
---------------------------------------------------------------------------
    OSHA apparently reversed this ``by the numbers'' policy in 
1995 and 1996. The agency claimed that ``in the past, OSHA 
inspectors were measured not on the basis of safety at the 
workplace, but on the basis of violations found. Employers were 
cited not only for genuine safety hazards, but also for minor 
or paperwork violations.'' \51\ OSHA Assistant Secretary Joseph 
Dear informed the committee that OSHA no longer uses the number 
of inspections, citations, or penalties as a measure of OSHA's 
performance.\52\ In other words, OSHA repudiated its ``quota'' 
policy.
---------------------------------------------------------------------------
    \51\ ``The New OSHA,'' at p. 8, cited in S. Hrg. 104-353, p. 68.
    \52\ S. Hrg. 104-353, p. 58.
---------------------------------------------------------------------------
    In addition, recognizing that inspectors focused on 
paperwork and other mere technical violations of Federal safety 
law rather than hazards directly related to safety, OSHA 
announced in its reinvention initiative that citations for 
paperwork were declining, citations for failure to post the 
OSHA poster would no longer be issued, and new inspection 
guidelines would assure that firms would not be cited for 
failure to maintain a material safety data sheet for common 
household consumer products.\53\ OSHA indicated that its 
``culture'' was changing, and inspectors were being ``empowered 
to use judgment and common sense'' during the inspection 
process.\54\
---------------------------------------------------------------------------
    \53\ ``The New OSHA,'' p. 8, cited in S. Hrg. 104-353, p. 68.
    \54\ ``The New OSHA,'' p. 9, cited in S. Hrg. 104-353, p. 69.
---------------------------------------------------------------------------
    Underscoring its recognition of the problem, OSHA issued a 
new policy guidance statement, CPL 2.111 (1995), setting forth 
a new policy on citing employers for paperwork violations. That 
instruction stated:

        [v]iolations of certain standards which require the 
        employer to have a written program * * * or to make 
        written certification * * * are perceived to be 
        ``paperwork deficiencies''. * * * OSHA is involved in 
        an effort to redirect limited resources to those 
        activities which most promote its central mission. 
        Unnecessary issuance of citations for minor technical 
        violations of paperwork and written program 
        requirements undermines the agency's efforts to promote 
        the agency mission.\55\
---------------------------------------------------------------------------
    \55\ CPL 2.111, p. 2.

    In addition to warnings in lieu of citations for ``minor 
technical violations of the law and written program 
requirements,'' OSHA also endorsed reduced penalties for 
paperwork violations. Under CPL 2.111, where an employer failed 
to maintain injury and illness records, but there were no 
injuries or illnesses at the work site, ``a citation shall not 
be issued.'' \56\ In cases where records were maintained but 
reference to a specific injury was omitted, a citation for 
``failure to record'' shall be issued, but no penalties would 
be levied unless the employer received a prior warning.\57\
---------------------------------------------------------------------------
    \56\ CPL 2.111, p. 3.
    \57\ CPL 2.111, p. 4.
---------------------------------------------------------------------------
    OSHA also endorsed reduced penalties in exchange for prompt 
abatement of hazards discovered during the inspection. In its 
reinvention document, ``The New OSHA,'' the agency claimed it 
had ``successfully'' experimented with its ``quick-fix'' 
program. As an incentive to abate hazards immediately and 
eliminate costly and time-consuming litigation should the 
employer contest the citation, OSHA inspectors reduced 
penalties for violations abated during the inspection.\58\ 
According to OSHA, the quick-fix program was responsible for a 
29 percent increase in the immediate abatement of 
violations.\59\
---------------------------------------------------------------------------
    \58\ ``The New OSHA,'' p. 8, cited in S. Hrg. 104-353, p. 69.
    \59\ ``The New OSHA,'' Appendix B, cited in S. Hrg. 104-353, p. 81.
---------------------------------------------------------------------------
    The committee took note of OSHA's reinvention initiatives 
and believed they underscored OSHA's own acknowledgment that 
our workplace safety policies must be reformed. After Assistant 
Secretary Joseph Dear explained OSHA's new policy of not citing 
employers for paperwork violations (e.g., citations for posters 
and failing to sign an injury log), Senator Kassebaum expressed 
the importance she attached to making these changes permanent. 
In Senator Kassebaum's view:

          [T]here has been a lot of talk back and forth about 
        what we should put into statutory language. I just 
        would be concerned that in the future, another 
        assistant secretary might decide not to do that and to 
        go back. It seems to me we do have to look at some 
        changes that contribute to the change in attitude that 
        you are trying to accomplish. We have to do it in such 
        a way that it will be lasting. Some systemic efforts 
        that really [will] reinforce what I think you are 
        attempting to do to create a different culture, 
        regarding a partnership for health and safety concerns, 
        are necessary. * * *
          * * * You are beginning to try to make some changes 
        that certainly seem to me at this point to be 
        important, but I would hope that we can work together 
        to actually put some statutory language together, 
        because it seems to me that that is important.\60\

    \60\ S. Hrg. 104-116, p. 101.

    The committee also took note of OSHA's attempt to 
streamline its enforcement process and improve its response 
time to complaints. Dr. David Whiston of the American Dental 
Association testified in support of OSHA's phone/fax procedure, 
in lieu of onsite inspections, to investigate routine 
complaints. Under this procedure, when OSHA received a 
complaint involving a dental office, it phoned or faxed the 
dental office to notify the office that a complaint had been 
filed and to request evidence of abatement within 5 days.\61\
---------------------------------------------------------------------------
    \61\ S. Hrg. 104-116, p. 108.
---------------------------------------------------------------------------
    OSHA expanded this procedure beyond dental offices. In 
pilot testing, OSHA stated that it reduced the time to achieve 
hazard abatement by more than 75 percent.\62\ The phone/fax 
procedure conserved scarce enforcement resources because OSHA 
inspectors did not respond with an onsite inspection, and 
``hazards [were] abated faster'' with ``better customer 
service.'' \63\
---------------------------------------------------------------------------
    \62\ See Memorandum to Regional Administrators from John Miles, 
Director of Compliance Programs, May 2, 1995.
    \63\ Id. In his budget request for the 1997 fiscal year, OSHA 
Assistant Secretary Joseph Dear testified before the House Committee on 
Appropriations Subcommittee on Labor, Health and Human Services, 
Education and Related Agencies (May 8, 1996) that the phone/fax system 
reduced the time from complaint to hazard abatement from 32.5 days to 
8.5 days in Atlanta, GA, 35 days to 11 days in Columbus, OH, and 39 
days to 9 days in Wichita, KS. OSHA apparently plans to expand the 
phone/fax system to cover formal as well as informal complaints. Daily 
Labor Report, BNA, May 16, 1996, p. A-4.
---------------------------------------------------------------------------
    OSHA's reinvention effort included an attempt to focus on 
the worst hazards in the most dangerous industries. OSHA noted 
that it currently treats all employers within an industry 
alike, regardless of their individual performance. In the 
future, however, the agency will seek to target its resources 
more effectively.\64\
---------------------------------------------------------------------------
    \64\ ``The New OSHA,'' p. 9-10, cited in S. Hrg. 104-353, p. 69-70.
---------------------------------------------------------------------------
    The committee noted, however, that attempts to more 
efficiently deploy OSHA's enforcement resources were hampered 
by the Department of Labor's interpretation of the OSH Act.\65\ 
The Department of Labor believes that OSHA inspectors must 
respond with an onsite inspection when the agency receives a 
formal (signed, written) complaint alleging a violation,\66\ 
despite wording of the OSH Act, section 8(f)(1), which states 
that an inspector must respond with an onsite inspection when 
the agency has ``reasonable grounds'' to believe that a hazard 
or violation exists.
---------------------------------------------------------------------------
    \65\ The Department of Labor's interpretation of the OSH Act could 
change in the future, however, because OSHA Assistant Secretary Joseph 
Dear told the committee: ``We have discovered a great deal more 
flexibility in the [OSH] Act than many people previously thought was 
there.'' (S. Hrg. 104-353, p. 29.)
    \66\ OSHA Assistant Secretary Joseph Dear, S. Hrg. 104-353, p. 18.
---------------------------------------------------------------------------
    Senator Jeffords noted that OSHA inspectors found serious 
hazards half the time when they conducted complaint 
inspections, but the percentage was almost exactly the same 
when they conducted random inspections. According to Senator 
Jeffords:

          What we are trying to do * * * is to allow you [OSHA] 
        to be more efficient. And one area where we are trying 
        to help you is to say maybe there are better ways and 
        quicker ways to get things done than necessarily an 
        inspection. I think the statistics show that you go out 
        and inspect, and about 50 percent of the time, you find 
        something wrong, and when you get an employee 
        complaint, about 50 percent of the time you find 
        something wrong.
          So we are trying to give you the flexibility to 
        enable you to solve the employee complaint other than 
        by an inspection, to allow you to make phone calls or 
        whatever else to make sure that if you go out there, 
        there is really something there. * * * \67\
---------------------------------------------------------------------------
    \67\ S. Hrg. 104-353, p. 28.

    Witnesses before the committee had other recommendations, 
too. Dr. David Whiston of the American Dental Association, 
after endorsing the phone/fax system for dental offices, noted 
that OSHA should target high-hazard employers while recognizing 
the special problems that small businesses might have with 
compliance. Dr. Whiston told the committee: ``The American 
Dental Association believes that reforming OSHA will help to 
focus the agency's resources and make it better able to carry 
out its mission.'' \68\
---------------------------------------------------------------------------
    \68\ S. Hrg. 104-116, p. 108.
---------------------------------------------------------------------------
    Later, Dr. Whiston testified:

          A small-employer exemption from all random 
        inspections and the OSHA paperwork requirements should 
        be part of any legislation passed by this committee, we 
        believe. The random exemption for dental offices is 
        consistent with current OSHA thinking. The agency has 
        already agreed not to use its limited resources to 
        randomly inspect dental offices. We believe that this 
        exemption should be codified for all small employers, 
        specifically, those employers with good health and 
        safety records. In addition, an exemption from paper 
        requirements, such as the HAZCOM standard, would lift a 
        great burden off small employers without undermining 
        employee health and safety.\69\
---------------------------------------------------------------------------
    \69\ S. Hrg. 104-116, p. 108.

    The committee noted that since 1978, Congress has exempted 
small employers (fewer than 11 employees) with better-than-
average safety records from random OSHA safety inspections.
    In conclusion, the Senate Committee on Labor and Human 
Resources reviewed Vice President Gore's National Performance 
Review recommendations on OSHA reform, the Administration's 
reinventing OSHA report, and various other workplace safety 
reinvention projects at the State level. The Committee also 
held hearings on OSHA reform. Based upon the Administration's 
acknowledgment that our Federal workplace safety program needed 
reform, OSHA Assistant Secretary Dear's statements that 
``proceeding with `business as usual' '' was unacceptable \70\ 
and testimony from witnesses representing workers, health and 
safety professionals, and firms, the Senate Committee on Labor 
and Human Resources concluded that OSHA reform was necessary to 
improve worker health and safety.
---------------------------------------------------------------------------
    \70\ S. Hrg. 104-116, p. 131.
---------------------------------------------------------------------------
    The committee concluded that Federal workplace safety laws 
should have an improved education and consultation program to 
provide employers with the information they need to comply with 
the law. In addition, the committee noted that with limited 
Federal resources, our workplace safety needs would be best met 
by establishing a series of positive incentives for firms to 
address safety on their own. Such a program would encourage 
employers to use private sector auditors and to establish 
health and safety programs that include management commitment, 
employee involvement, and hazard identification and abatement.
    At the same time, with regard to enforcement, OSHA needed a 
credible policy that focused on real workplace hazards rather 
than on paperwork or other technical violations of the law. 
This policy would refocus OSHA on performance measurements 
(injury rates) rather than on inspector quotas.

             III. Legislative History and Committee Action

    On June 21, 1995, and June 22, 1995, the Senate Committee 
on Labor and Human Resources held hearings on OSHA reform (S. 
Hrg. 104-116), and the following individuals provided 
testimony:

June 21

    Ron Hayes of Alabama, whose son was killed in a corn silo.
    Ray Montaigne, Capitol Heights, MD, a construction industry 
safety professional on behalf of the Associated Builders and 
Contractors.
    James C. Andrews of Texas, safety professional from Dow 
Chemical Co. on behalf of the Voluntary Protection Participants 
Association of McLean, VA.
    Rick Treaster, president of Local 2400, Amalgamated 
Clothing and Textile Workers Association of Lewistown, PA.
    Duane Guy, acting director of Labor Management Relations 
and Employment Standards Division, Kansas Department of Human 
Resources, Topeka, KS.
    Patrick E. Bush, coordinator for workers' compensation; 
Western Resources, Topeka, KS.
    Joseph A. Kinney, director, National Safe Workplace 
Institute, Monroe, NC.
    Vernon E. Rose, Birmingham, AL, president of the American 
Industrial Hygiene Association.
    Additional statements and letters regarding OSHA reform 
were also received and placed in the record.

June 22

    Joseph Dear, Assistant Secretary, OSHA, U.S. Department of 
Labor, Washington, DC.
    William Steinmetz, South Bend, IN, on behalf of the 
National Roofing Contractors Association.
    David Whiston, Vienna, VA on behalf of the American Dental 
Association.
    Michael Wright, Pittsburgh, PA, on behalf of the United 
Steel Workers of America, AFL-CIO.
    Additional statements and letters regarding OSHA reform 
were received and placed in the record.
    On November 17, 1995, Senators Gregg, Kassebaum, Nunn, 
Jeffords, and Gorton introduced the Occupational Safety and 
Health Reform and Reinvention Act, S. 1423.
    On November 29, 1995, the Senate Committee on Labor and 
Human Resources held a third hearing on OSHA reform (S. Hrg. 
104-353). The following individuals provided testimony:
    Joseph Dear, Assistant Secretary, OSHA, U.S. Department of 
Labor, Washington, DC.
    Dr. Forrest Fisher, cochairman, Government Affairs 
Committee, American College of Occupational and Environmental 
Medicine, Camden, NJ.
    Katherine Gekker, owner of The Hoffman Press, Alexandria, 
VA, on behalf of the Printing Industries of America.
    David J. Heller, executive director for environmental 
health and safety, US West, Inglewood, CO, on behalf of the 
Labor Policy Association, Washington, DC.
    Linda Chavez-Thompson, executive vice president, AFL-CIO, 
Washington, DC.
    Additional statements and letters regarding OSHA reform 
were received and placed in the record.
    On December 6, 1995, the Senate Committee on Labor and 
Human Resources held a fourth hearing on OSHA reform, this time 
in the form of a joint hearing with the Senate Committee on 
Small Business. The following individuals provided testimony:
    Mark S. Hyner, president of Whyco Chromium Co., Thomason, 
CT.
    Daniel E. Richardson, administrator, Latta Nursing Home A, 
Latta Road Nursing Homes, Rochester, NY.
    Earl Bradley, president, EBAA Iron, Inc., Eastland, TX.
    Mike McMichael, president of McMichael Co., Central, SC.
    Paul Middendorf, director, OSHA Consultation Program of 
Georgia, Atlanta, GA.
    John Cheffer, chairman, National Government Affairs 
Committee, American Society of Safety Engineers, Des Plaines, 
IL.
    David Carroll, director of safety, Woodpro Cabinetry, Inc., 
Cabool, MO.
    Robert A. Georgine, president, Building and Construction 
Trades Department, AFL-CIO, Washington, DC.
    Deborah Berkowitz, director, office of occupational safety 
and health, United Food and Commercial Workers International 
Union, Washington, DC.
    Additional statements and letters regarding OSHA reform 
were received and placed in the record.
    On February 28, 1996, and March 5, 1996, the Senate 
Committee on Labor and Human Resources met in Executive Session 
to consider Senate bill 1423, the OSHA Reform and Reinvention 
Act. The committee voted on the following amendments:
    Senators DeWine and Abraham offered an amendment striking 
the provision that only employees or employee representatives 
may file formal OSHA complaints. The amendment was agreed to by 
voice vote.
    Senator Dodd offered an amendment establishing an office 
construction safety within OSHA and mandating that construction 
sites maintain health and safety programs. The amendment was 
rejected (7-9).
        YEAS                          NAYS
Kennedy                             Kassebaum
Pell                                Jeffords
Dodd                                Coats
Simon                               Gregg
Harkin                              Frist
Mikulski                            DeWine
Wellstone                           Ashcroft
                                    Abraham
                                    Gorton

    Senator Simon offered an amendment debarring Federal 
contractors with a pattern of OSHA violations. The amendment 
was initially accepted, but a quorum was lacking. The committee 
voted (9-7) to reconsider the amendment, and on 
reconsideration, rejected the amendment (7-9).
    Vote to reconsider:
        YEAS                          NAYS
Kassebaum                           Kennedy
Jeffords                            Pell
Coats                               Dodd
Gregg                               Simon
Frist                               Harkin
DeWine                              Mikulski
Ashcroft                            Wellstone
Abraham
Gorton

    Vote on amendment:
        YEAS                          NAYS
Kennedy                             Kassebaum
Pell                                Jeffords
Dodd                                Coats
Simon                               Gregg
Harkin                              Frist
Mikulski                            DeWine
Wellstone                           Ashcroft
                                    Abraham
                                    Gorton

    Senator Kennedy offered an amendment to modify the 
provisions relating to citations, amending the warnings in lieu 
of citations provision. The amendment failed on a rollcall vote 
of 7-9.
        YEAS                          NAYS
Kennedy                             Kassebaum
Pell                                Jeffords
Dodd                                Coats
Simon                               Gregg
Harkin                              Frist
Mikulski                            DeWine
Wellstone                           Ashcroft
                                    Abraham
                                    Gorton

    Senator Kennedy offered an amendment to strike the 
mandatory penalty reductions in S. 1423. The amendment failed 
on a rollcall vote (7-9).
        YEAS                          NAYS
Kennedy                             Kassebaum
Pell                                Jeffords
Dodd                                Coats
Simon                               Gregg
Harkin                              Frist
Mikulski                            DeWine
Wellstone                           Ashcroft
                                    Abraham
                                    Gorton

    Senators Jeffords and Abraham offered an amendment assuring 
that a complainant's name not be released to the employer. The 
amendment was adopted by rollcall vote:
        YEAS                          NAYS
Kassebaum                           None
Jeffords
Coats
Gregg
Frist
DeWine
Ashcroft
Abraham
Gorton
Kennedy
Pell
Dodd
Simon
Harkin
Mikulski
Wellstone

    Senator Wellstone offered an amendment to modify the OSHA 
complaint procedure and to maintain the employee entitlement to 
an inspection. The amendment failed on a tie (8-8) vote.
        YEAS                          NAYS
Kassebaum                           Jeffords
Kennedy                             Coats
Pell                                Gregg
Dodd                                Frist
Simon                               DeWine
Harkin                              Ashcroft
Mikulski                            Abraham
Wellstone                           Gorton

    Senator Kennedy offered an amendment related to criminal 
penalties. The amendment failed (7-9) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Kassebaum
Pell                                Jeffords
Dodd                                Coats
Simon                               Gregg
Harkin                              Frist
Mikulski                            DeWine
Wellstone                           Ashcroft
                                    Abraham
                                    Gorton

    Senator Kennedy offered an amendment by Senator Harkin to 
strike the provisions related to employee involvement. The 
amendment failed (7-9) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Kassebaum
Pell                                Jeffords
Dodd                                Coats
Simon                               Gregg
Harkin                              Frist
Mikulski                            DeWine
Wellstone                           Ashcroft
                                    Abraham
                                    Gorton

    Senator Wellstone offered an amendment providing enhanced 
``whistle blower'' protection and remedies to complainants, 
which failed (7-9) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Kassebaum
Pell                                Jeffords
Dodd                                Coats
Simon                               Gregg
Harkin                              Frist
Mikulski                            DeWine
Wellstone                           Ashcroft
                                    Abraham
                                    Gorton

    Senator Simon offered an amendment to mandate OSHA coverage 
for Federal, State, and local public sector workers. The 
amendment was agreed to (9-7) on a rollcall vote:
        YEAS                          NAYS
Jeffords                            Kassebaum
Abraham                             Coats
Kennedy                             Gregg
Pell                                Frist
Dodd                                DeWine
Simon                               Ashcroft
Harkin                              Gorton
Mikulski
Wellstone

    The committee then voted (9-7) to report the bill, as 
amended, on a rollcall vote:
        YEAS                          NAYS
Kassebaum                           Kennedy
Jeffords                            Pell
Coats                               Dodd
Gregg                               Simon
Frist                               Harkin
DeWine                              Mikulski
Ashcroft                            Wellstone
Abraham
Gorton

            IV. Explanation of the Bill and Committee Views

    Senate bill 1423 will improve workplace safety for workers, 
assist small employers to comply with Federal safety standards, 
leverage Federal resources, and refocus OSHA inspectors on the 
most serious hazards in the most dangerous industries. This 
effort represents an important step away from the ``era of big 
government'' and toward the era of cooperative, responsive, and 
flexible government.
    The bill's provisions are not new. Instead, the bill simply 
codifies the Clinton administration's OSHA reinvention effort. 
As explained below, notwithstanding the Administration's claims 
to the contrary, the bipartisan legislation will not in any way 
lower safety standards for American workers. Instead, it is a 
significant improvement to permit the Department of Labor to 
implement the recommendations set forth in Vice President 
Gore's reinventing government report and as presented by OSHA 
Assistant Secretary Joseph Dear to the committee during his 
appearances before the committee.
    The committee listened carefully to the testimony of the 
witnesses at the committee's 4 hearings on OSHA reform, and 
studied the written material submitted by various interested 
parties. The committee also carefully reviewed the 
Administration's testimony and its OSHA reinvention material. 
The committee therefore recommends that the full Senate 
expeditiously consider the bipartisan legislation and enact it 
into law.

               health and safety reinvention initiatives

    Senate bill 1423 establishes positive incentives for work 
sites, including both workers and supervisors, to address 
health and safety without relying on OSHA inspections. Having 
relied on mass inspection alone in the past, OSHA must now 
differentiate between work sites based upon their commitment to 
workplace safety and health, and reward those work sites that 
have made a commitment toward workplace safety.
    OSHA, the business community and safety advocates 
recognized that OSHA will never have the resources to inspect 
every work site. Rather than attempting to rely on inspections 
to discover violations, OSHA must encourage work sites to 
address health and safety on their own. In the Department of 
Labor's own words, ``The key to success is encouraging 
employers to work with their employees in hazard identification 
and safety awareness, rather than have those workers depend 
solely on OSHA inspectors.'' \71\
---------------------------------------------------------------------------
    \71\ ``The New OSHA,'' p. 4, cited in S. Hrg. 104-353, p. 64.
---------------------------------------------------------------------------
    Senate bill 1423 encourages employers to address health and 
safety on their own without relying on OSHA inspections. The 
positive incentives provide an inspection exemption, which 
applies only to programmed (not complaint) inspections, and 
reduced penalties for employers that either establish an 
effective health and safety program or that utilize certified 
auditors to review the work site.

                       health and safety program

    To qualify for the reinvention initiative, an employer must 
establish a program that includes all the elements that the 
Department of Labor has recognized as being necessary for a 
health and safety program, including management commitment, 
employee involvement, procedures to identify and address 
hazards, and employee training. Employee involvement must 
include regular consultation between management and 
nonsupervisory employees, and nonsupervisory employees must be 
given an opportunity to make recommendations and receive 
responses to suggestions for addressing workplace hazards.
    To demonstrate that the program is not just a ``paper'' 
program but instead actually has been implemented effectively 
to reduce workplace accidents, the employer also must maintain 
an exemplary health and safety record. The legislation uses the 
same definition of the phrase ``exemplary health and safety 
record'' that OSHA currently uses for firms that participate in 
the SHARP program, e.g., firms with no workplace fatalities and 
a lost workday rate at or below the national average for the 
firm's particular industry. \72\
    The committee wants to be clear that employers may not 
qualify for the inspection exemption without actually 
implementing a bona fide health and safety program. A ``paper'' 
program is not sufficient.
---------------------------------------------------------------------------
    \72\ See OSHA's compliance directive, OSHA Instruction TED 3.5A, p. 
X-4, which states that firms with ``exemplary programs'' qualify for 
the inspection exemption. Such firms must have ``lost workday rates at 
or below the national average for their industry.'' Thus, S. 1423 
adopts OSHA's definition of an ``exemplary'' record in that it requires 
a better than average lost workday rate, and it compares the firm's 
lost workday rate to other firms in that particular industry rather 
than all industries.
    The committee also noted that in the Main 200 program, the 
Department of Labor granted an inspection exemption to 200 firms with 
the greatest number of occupational injuries, arguably the ``worst 
actors,'' without even requiring them to have better than average lost 
workday records for their industry.
---------------------------------------------------------------------------
    The Department of Labor has found that firms actually will 
establish and implement health and safety programs when they 
promise to do so. For instance, in the Maine 200 program, OSHA 
encouraged companies with the greatest number of workplace 
injuries--arguably the worst actors--to establish health and 
safety programs. Those companies that responded positively were 
removed from OSHA's primary inspection list. Senate bill 1423 
would operate in the same way.
    As a further deterrent to fraud, any company that falsely 
certified that it had a safety and health program would be 
subject to criminal penalties. Thus, the legislation has 
serious deterrents to fraud.

                        third-party consultants

    In addition, employers that utilize a board-certified 
health and safety professional to conduct a work site 
consultation would also be eligible for the programmed 
inspection exemption and penalty reduction. Consultants must 
meet the qualifications established by nationally recognized 
standards organizations and must be certified by the Department 
of Labor. Such consultants must, at a minimum, be at least as 
qualified as OSHA inspectors and personnel utilized in the 
onsite consultation program.\73\
---------------------------------------------------------------------------
    \73\ Significantly, OSHA has minimal qualifications for consultants 
hired by State governments for the federally funded onsite consultation 
program. According to OSHA, State onsite consultants must have the 
ability: to identify and abate hazards, to assess employee exposure and 
risk, and to demonstrate knowledge of OSHA standards and health and 
safety programs. (S. Hrg. 104-353, p. 91.) Private sector consultants 
will be more qualified than the onsite consultation consultants who 
OSHA currently considers to be qualified to review the work site for 
safety and health hazards.
---------------------------------------------------------------------------
    The committee does not intend the Department of Labor to 
design and implement its own certification test. Rather, the 
Federal Government should recognize national certification 
bodies that perform that function. Thus, just as State bar 
associations and medical board-certifying organizations 
establish State standards for the practice of law and medicine, 
respectively, so should the Department of Labor recognize 
safety and health certifications established by nationally 
recognized organizations.
    Consultants must be board-certified safety and health 
professionals. Individuals, such as ``certified safety 
professionals'' and ``certified industrial hygienists,'' will 
be performing the inspections. These consultants know as much, 
if not more, about safety and health than OSHA inspectors 
do.\74\
---------------------------------------------------------------------------
    \74\ In fact, OSHA only requires its safety inspectors to have a 
bachelors degree with 24 credit hours of basic science or 3 years of 
general technical experience. In contrast, board-certified safety 
professionals and safety engineers must have a bachelors degree and 
pass a comprehensive national examination.
---------------------------------------------------------------------------
    Certified private sector consultants, under the onsite 
consultation program, a State workers' compensation program, or 
simply by invitation from the employer, must conduct an onsite 
review of the work site and ensure that any serious hazards 
identified were corrected. If necessary, the consultant may 
determine that a follow-up visit is necessary to address the 
hazards that have been identified.
    Those employers that make the effort to address health and 
safety on their own would be exempt from surprise OSHA 
inspections. Naturally, if an employee filed a complaint, or an 
accident or serious injury occurred on the site, then OSHA 
would, as expected in such a case, respond with an onsite 
inspection.
    The Clinton administration has recognized the value of 
private sector consultants. In fact, Vice President Gore's 
original reinventing government report stated ``no army of OSHA 
inspectors need descend upon corporate America. * * * OSHA 
should give employers two options * * * they could hire third 
parties, such as private inspection companies [or train 
nonsupervisory employees to conduct inspections].''
    In addition, OSHA's form letter to employers under the 
phone/fax system notified the employer that a complaint had 
been filed and that OSHA needed proof of abatement. The agency 
then informed employers that the State consultation service 
offered help in ``resolving all occupational safety and health 
issues * * * [but in the event of a backlog] you [the firm] may 
be able to obtain similar services from your insurance carrier 
or private consultant in a more timely fashion.'' \75\ Why 
would OSHA refer an employer to an insurance carrier or private 
consultant if OSHA did not believe they could do the job?
---------------------------------------------------------------------------
    \75\ S. Hrg. 104-353, p. 99.
---------------------------------------------------------------------------
    The committee carefully considered the issue of third-party 
certification. Although some concerns were raised about the 
independence of certified consultants, the committee is 
confident that licensed, certified consultants will act 
professionally. As Vice President Gore's reinventing government 
report recognized, this body of private sector expertise should 
be harnessed and put to good use.\76\
---------------------------------------------------------------------------
    \76\ The committee also noted that certified public accountants 
(CPAs) perform financial audits, and in Virginia, automobile repair 
facilities and gas stations perform automobile safety inspections. 
These served as good examples of where the private sector has done the 
job more efficiently than the public sector.
---------------------------------------------------------------------------
    The committee also noted that any consultant or employer 
making a false certification to OSHA would be subject to 
criminal penalties under the OSH Act. This is a powerful 
disincentive to falsify documentation.
    The committee is certain that the Department of Labor has 
the resources to administer the provisions of S. 1423, 
including the certification from the third-party consultants 
and the certification that a firm has established an effective 
safety and health program. Senate bill 1423 only requires 
companies to submit a certification, which could be as short as 
1 page in length, and that submission would only be required 
for those companies participating in the program.\77\
---------------------------------------------------------------------------
    \77\ Ironically, lack of resources has not stopped OSHA from 
proposing new and burdensome regulations on ergonomics and indoor air 
quality. The concern about limited resources seems to have been applied 
selectively, depending upon whether the Department of Labor supports or 
opposes the legislative proposal.
---------------------------------------------------------------------------
    The filing may be done electronically to reduce the 
paperwork. Other Federal agencies have much more lengthy 
mandatory reporting, such as the Pension and Welfare Benefit 
Administration and the Pension Benefit Guaranty Corporation for 
employee benefit plans, as well as affirmative action and equal 
employment opportunity forms that the Federal Government 
requires firms to file.
    OSHA has acknowledged that it cannot inspect every 
workplace. The agency will be much more efficient if it more 
fully utilizes private sector resources, with the agency 
conducting monitoring audits to assure against fraudulent 
reporting and certification (which carry criminal penalties). 
Vice President Gore's reinventing government report recommended 
that approach, and OSHA has used those procedures with the 
Maine 200 program.

                           reduced penalties

    Employers addressing health and safety through the 
reinvention initiatives would experience reduced OSHA penalties 
in the event of a citation. The penalty would be reduced at 
least 25 percent if the employer maintained a health and safety 
program or maintained an exemplary health and safety record. 
The reduction would be 50 percent if the employer had both the 
program and the exemplary record. And the penalty would be 
reduced at least 75 percent if the employer used a certified 
health and safety auditory to review the work site and the 
employer complied with the auditor's recommendations.
    The purpose of automatic penalty reductions for companies 
that implement health and safety programs, have good safety 
records, or use third-party consultants, is to create an 
incentive for companies to ``do the right thing.'' The 
committee wants to reward good behavior through positive 
incentives, even if the work site falls short of absolute 
perfection in the eyes of an inspector. 78
---------------------------------------------------------------------------
    \78\ The penalty reduction for work sites using a third-party 
consultant only applied if the violation had not created an imminent 
danger, caused a fatality or serious incident, or been repeat citation.
---------------------------------------------------------------------------
    For the positive incentives to be credible, firms require 
some certainty that the inspection exemption and penalty 
reduction are real. The only was to do that is to guarantee it 
in the OSHA statute. OSHA's current plan, to grant a sliding 
scale of penalty reductions, is not a credible incentive.
    The committee noted that OSHA has supported automatic 
penalty reductions in the past. In it's ``Reinventing Labor 
Regulations'' report, 79 the Department of Labor stated 
that ``OSHA will waive penalties for any employer with up to 
250 employees who is found to have no significant (willful, 
repeated, or serious) violations.'' In response to written 
questions after a committee hearing, OSHA appeared to distance 
itself from its own proposal, but there is not dispute that 
last year, OSHA itself believed this to be good policy. 
Moreover, OSHA has used a similar approach by offering an 
inspection exemption and penalty waiver for work sites, in VPP, 
Maine 200, and SHARP.
---------------------------------------------------------------------------
    \79\ June 15, 1995.
---------------------------------------------------------------------------

                          Inspection Exemption

    One of the positive incentives for firms to address health 
and safety concerns on their own is the inspection exemption. 
This also allows OSHA to concentrate its efforts on those work 
sites where supervisors and workers are not committed to 
addressing health and safety.
    Senate bill 1423 is not the first time that OSHA or the 
Congress granted health and safety inspection exemptions. As 
described below, small employers under the annual Labor-Health 
and Human Services appropriations rider and work sites 
participating in the SHARP, VPP and the Maine 200 program, have 
been removed from OSHA's general inspection schedule.
    In the annual Labor-HHS appropriations rider, Congress 
exempted small family farms, and small employers with better 
than average safety records, from regular programmed safety 
inspections. Congress included this rider in every 
appropriations bill since 1978.
    OSHA also provided an exemption from random inspections for 
certain companies using the onsite consultation program 
(usually smaller firms or those in high-hazard industries) 
under the Safety and Health Achievement Recognition Program 
(SHARP).80 To participate in the program, the State onsite 
consultation service sends a consultant to the work site for a 
review of injury and illness logs, written programs, and a 
walk-through of the plant. Work sites that establish an 
effective health and safety program and reduce their injury and 
illness rates to below average for their industry are exempt 
from programmed inspections.
---------------------------------------------------------------------------
    \80\ ``Consultation Services for the Employer,'' U.S. Department of 
Labor, OSHA 3047, printed in S. Hrg. 104-316, p. 170.
---------------------------------------------------------------------------
    OSHA also recognized excellence in health and safety for 
work sites through its VPP program. These companies with a 
comprehensive health and safety program that underwent a 
thorough evaluation by OSHA every 3-4 years were exempt from 
regular, programmed inspections.
    Finally OSHA touted the success of its Maine 200 program, 
where the agency identified the 200 Maine companies with the 
highest numbers of injuries and gave them a choice: establish a 
comprehensive health and safety program, demonstrate a 
reduction in workplace injuries, and be placed on OSHA's 
secondary inspection list, or face a comprehensive, wall-to-
wall inspection. Companies on the secondary inspection list 
were removed from the primary inspection list and would only be 
subject to a monitoring audit, where OSHA would verify that the 
health and safety program was being implemented.
    During the committee's hearings, some criticized S. 1423, 
claiming the bill would exempt 72 percent of employers from 
OSHA inspections. This criticism was misplaced for several 
reasons.
    First, S. 1423 does not exempt any employers from complaint 
inspections, so employers are still subject to OSHA regulation, 
inspections, and citations. Second, the annual appropriations 
rider alone, which has been enacted into law since 1978, 
exempts 75 percent of our works sites from safety inspections 
because OSHA does not conduct random safety inspections of any 
employer with less than 10 employees. (In the United States, 
there are a total of 6.4 million work sites, 4.78 million of 
which have fewer than 10 employees.)
    For the remaining larger employers (with more than 10 
employees), OSHA targets high-hazard industries. According to 
CRS, only about 384,000 work sites of the 6.4 million 
establishments nationwide are subject to random OSHA 
inspections. So in practice, the current system for random 
inspections exempts about 94 percent of work sites from safety 
inspections. It is astonishing that opponents, particularly the 
Department of Labor, criticize S. 1423 for granting ``a 
substantial majority'' of firms an inspection exemption when 
OSHA's current inspection process exempts 94 percent of work 
sites from safety inspections.

          Consultation and Voluntary Protection Program (VPP)

    In addition to providing positive incentives for employers 
to establish health and safety programs and to use private 
sector health and safety consultants, Senate bill 1423 also 
codifies two very successful programs that enjoy bipartisan 
support: the onsite consultation program and the Voluntary 
Protection Program (VPP). Both programs use Federal Government 
resources to give information to firms so they may identify and 
abate workplace hazards.
    Senate bill 1423 codifies the onsite consultation program, 
also known as the section 7(c)(1) program. Heretofore, pursuant 
to regulation, OSHA has offered grants to states to provide 
health and safety assistance to small, and particularly high-
risk firms. Employers request that the consultation agency send 
a consultant to the work site to review all relevant paperwork, 
to walk around the work site to observe hazards, to talk with 
employees about possible hazards, and to conduct a closing 
conference to review the findings and discuss possible methods 
to abate hazards. The consultation is conducted without fear of 
generating an OSHA citation or fine, as long as the firm agrees 
to address any hazards identified during the consultation.
    Similarly, S. 1423 codifies the VPP program, where OSHA 
recognizes larger work sites for their extraordinary commitment 
to health and safety. After an extensive work site review, OSHA 
awards VPP status to work sites with effective health and 
safety programs and superior lost workday records. Such work 
sites are removed from OSHA's programmed inspection list.
    By codifying the consultation and VPP, the committee 
intends to provide stability and permanence to these important 
programs. Moreover, the committee believes codification 
reaffirms the Federal commitment to providing the private 
sector with the occupational safety information firms need to 
comply with the law.

                      Limited Self-Audit Privilege

    Separate and apart from the consultation, inspection 
exemption, and penalty reduction program described above, or 
other audits required by existing OSHA standards, Senate bill 
1423 also provides a limited privilege for employer health and 
safety audits. Under the legislation, records of health and 
safety inspections, audits, or reviews conducted by employers 
need not be disclosed to an OSHA inspector, except under 
certain circumstances.
    The purpose of the limited privilege is to encourage 
employers to examine critically their health and safety 
procedures, workplace conditions, and possible sources of 
injuries and accidents. In the past, managers have been 
deterred from conducting these audits knowing that an OSHA 
inspector could use the records from such audits as the basis 
for a willful citation.
    Because the privilege is intended to encourage employers to 
investigate and address workplace hazards, the privilege would 
not apply unless the employer takes measures to address the 
hazards that were identified during the audit. In addition, the 
privilege does not extend to OSHA investigations involving 
fatalities or serious injuries due to the government's interest 
in investigating serious accidents.
    The committee intends that the privilege would be applied 
procedurally just as other matters of privilege, such as the 
attorney-client privilege, are applied. Thus, employers would 
assert the privilege when the OSHA investigator requests the 
self-audit information. At a later time, the matter would be 
litigated before an administrative law judge, the OSHA Review 
Commission, or a court of competent jurisdiction.

                          Employee Involvement

    Senate bill 1423 also takes an important step toward 
promoting employee involvement on health and safety issues. 
Rather than create a new Federal program, however, the 
legislation instead simply removes the barriers that Federal 
labor law places in the way of employee involvement.
    The National Labor Relations Board has held that worker-
management health and safety committees, where workers discuss 
health and safety issues with supervisors, violate the National 
Labor Relations Act.\81\ Senate bill 1423 creates a safe-harbor 
in Federal labor law for employee involvement programs that 
meet to discuss, in whole or in part, health and safety issues. 
The legislation also contains an important restriction limiting 
its scope to nonunion settings, so an employer would be 
prohibited under S. 1423 from trying to bypass its existing 
union on health and safety issues.
---------------------------------------------------------------------------
    \81\ See Dillon Stores (NLRB, 1995) (worker suggestions for bakery 
employees to be given safety goggles while working fryer violated 
NLRA); EFCO (Case No. 17-CA-16911, 1995).
---------------------------------------------------------------------------
    The committee agrees with the U.S. Department of Labor that 
``employer commitment and meaningful employee participation and 
involvement in safety and health is a key ingredient in 
effective programs.'' \82\ The committee also agrees that 
``employee participation is vital to a safe working 
environment.'' \83\ The Department of Labor has promoted 
employee involvement in numerous ways, and the committee 
applauds those efforts.
---------------------------------------------------------------------------
    \82\ ``The New OSHA,'' p. A-1, cited in S. Hrg. 104-353, p. 71.
    \83\ Written testimony of OSHA Assistant Secretary Joseph Dear, S. 
Hrg. 104-353, p. 53.
---------------------------------------------------------------------------
    For instance, in its reinvention effort, OSHA promises 
``partnership'' rather than ``traditional enforcement'' for 
companies with strong health and safety programs that include: 
management commitment, employee involvement, procedures to 
identify and abate hazards, and employee training. For 
companies with strong health and safety programs, OSHA offered 
to make inspections ``quite rare.'' (Emphasis added.) \84\
---------------------------------------------------------------------------
    \84\ ``The New OSHA,'' pp. 3-4, cited in S. Hrg. 104-353, pp. 63-
64.
---------------------------------------------------------------------------
    In fact, when implementing this reinvention program through 
the Maine 200 program, OSHA gave the 200 Maine employers with 
the greatest number of worker's compensation claims a choice--
establish a strong health and safety program, or face a wall-
to-wall inspection. OSHA told employers that their program must 
include a ``provision for employee involvement in safety and 
health matters. An employee safety and health committee is the 
preferred method, but equivalent systems will be considered * * 
* on an individual basis.'' \85\ OSHA even wrote to one 
employer participating in the Maine 200 program that it was 
``delighted to see your `employee team concept' used to perform 
[an] ergonomic job hazard analysis on high risk jobs.''
---------------------------------------------------------------------------
    \85\ OSHA Augusta Area Office Instruction CPL 2.1A, June 25, 1993.
---------------------------------------------------------------------------
    The performance agreement for 1995 between Labor Secretary 
Robert Reich and OSHA Assistant Secretary Joseph Dear included 
a section on employee involvement. That agreement stated:

          OSHA will take advantage of opportunities to redefine 
        its relationship with the public. Partnerships with 
        business and labor will be strengthened to foster 
        excellence in worksite safety and health and high 
        performance workplaces through educational, training 
        and outreach programs; grass roots partnerships will be 
        formed as well. And cooperative labor-management 
        approaches to safety and health excellence will be 
        encouraged by demonstration of the advantages of 
        management commitment, teamwork and employee 
        involvement. (Emphasis added.) \86\
---------------------------------------------------------------------------
    \86\ Performance Agreement, p. 2.

    The committee hopes it will assist OSHA Assistant Secretary 
Joseph Dear to meet Secretary Reich's performance criteria by 
permitting employee involvement on health and safety issues. 
Senate bill 1423 will facilitate these cooperative efforts 
between workers and supervisors.
    The Department of Labor suggests that current 
interpretations of Federal labor law permit employee 
involvement programs with ``appropriate protections.'' \87\ 
However, as Senator Gregg pointed out to OSHA Assistant 
Secretary Dear during an OSHA reform hearing: ``The fact is 
that if an employer sets up an employee participation 
committee, he can be subject to a labor law violation or the 
potential for labor law violation. And you can give a lot of 
verbal support to the concept of having employer-employee 
relations and joint participation, but unless you get over that 
threat, you have got a problem.''\88\
---------------------------------------------------------------------------
    \87\ S. Hrg. 104-353, p. 53.
    \88\ S. Hrg. 104-116, p. 93.
---------------------------------------------------------------------------
    The ``appropriate protections'' most frequently mentioned 
by opponents of the employee involvement provisions in S. 1423 
are secret ballot elections. Ironically, the NLRB has used 
secret ballot elections to find that the employee teams were 
``employee representation committees'' dominated by management 
in violation of the law.\89\
---------------------------------------------------------------------------
    \89\ Webcor Packaging, Inc. 319 NLRB No. 142, fn. 6 (1995) (``Plant 
Council acted in a representational capacity because its employee-
members were elected by respondent's work force''); Dillon Stores, 319 
NLRB No. 149 (1995) (employee committee elected by coworkers through 
secret ballot, where members dealt with safety and other workplace 
issues, violated Federal labor law).
---------------------------------------------------------------------------
    Finally, for those who claim that Federal labor law poses 
no hindrance to worker-management committees or other employee 
involvement programs, the committee noted that a Democrat-
endorsed OSHA reform bill, S. 575 (103d Congress), that 
mandated that all employers with more than 10 employees 
establish worker-management health and safety committees, 
amended the National Labor Relations Act to assure that the 
committees were not inconsistent with Federal labor law. The 
Clinton administration and the AFL-CIO both endorsed this 
legislation.

                       reforming osha enforcement

    In addition to providing positive incentives and 
eliminating the barriers firms face in addressing health and 
safety on their own, the committee also believed that OSHA's 
enforcement effort needed to be reformed. Senate bill 1423 
amends OSHA's employee complaint process, OSHA's inspector 
citation policy, and OSHA's penalty structure. These reform 
efforts refocus OSHA on its basic mission, which is to improve 
safety and health for workers, particularly at the most 
dangerous work sites.
    One method of improving workplace safety focused on 
increasing the efficiency of OSHA's inspection process. 
According to an AP Online report:

          Three-quarters of U.S. work sites that suffered 
        serious accidents in 1994 and early 1995 had never been 
        inspected during this decade by the Federal workplace 
        safety agency. * * * Two key reasons OSHA did not make 
        advance visits to these lethal work sites are a 
        shortage of OSHA inspectors and its mandate to follow 
        up on all worker complaints, no matter how routine. 
        More than half the time, complaint inspections find no 
        serious violations. * * * [OSHA Assistant Secretary] 
        Dear says OSHA is trying to address the inspection 
        problems, including experiments to seek out unfounded 
        complaints by fax or telephone. * * *'' \90\
---------------------------------------------------------------------------
    \90\ AP Online, September 4, 1995. The report noted that ``more 
than half the OSHA inspections triggered by formal complaints since 
1989 failed to find any serious violations, while nearly a third found 
no violations at all.'' (Id.) According to the report, ``OSHA officials 
readily acknowledge the problem but say their hands are tied by the 
1972 law that created the agency and required that all worker 
complaints be inspected.'' (Id.)

    According to the AP Online analysis, OSHA wasted 106,000 
hours in 1994 on complaint inspections that found no 
violations. Indeed, OSHA found serious hazards in complaint 
inspections roughly the same percentage of the time as it did 
with random inspections.\91\ In other words, OSHA could have 
just as well picked work sites out of a hat (a random process) 
rather than responded to specific complaints, and it would have 
identified the same number of hazards. The committee found that 
rather astounding. Clearly, the complaints process required 
reform.
---------------------------------------------------------------------------
    \91\ See also written testimony of Joseph Dear before the Senate 
Committee on Labor and Human Resources, Nov. 29, 1995, S. Hrg. 104-353, 
p. 55 (``In fact, OSHA finds serious hazards at the same rate for 
complaint-based inspections as it does for targeted inspections.'')
---------------------------------------------------------------------------
    The OSH Act requires an onsite inspection when an 
individual files a formal (written and signed) complaint and 
the Secretary has ``reasonable grounds'' to believe that a 
violation or danger exists.\92\ The Department of Labor 
interpreted the OSH Act to require an onsite inspection after 
an individual files a formal complaint.\93\ In other words, 
when it receive a formal complaint, the Department of Labor 
thought that it must do an onsite inspection if the signed 
complaint alleged that a hazard or violation existed. The 
agency did not believe it could conduct an investigation, 
through phone, fax or other means, to determine whether there 
was reasonable cause to believe a violation or hazard existed 
and then use the results of that investigation as the basis for 
not conducting the onsite inspection.
---------------------------------------------------------------------------
    \92\ 29 U.S.C. 657(f).
    \93\ See Department of Labor responses to Senator Kassebaum's OSHA 
questions, S. Hrg. 104-353, p. 84-85.
---------------------------------------------------------------------------
    In contrast, with an informal complaint, OSHA had 
discretion whether to conduct an onsite inspection. In the 
recent past, OSHA has used the phone/fax system to determine 
whether a hazard existed and whether it had been abated.
    Senate bill 1423 amends OSHA's complaint process to give 
the agency more flexibility to evaluate complaints. After an 
individual filed a complaint, if the complaint alleged that a 
hazard or violation existed (where is the ``reasonable 
grounds'' that a hazard or violation existed), then OSHA would 
be authorized ``as a method of investigating an alleged 
violation or danger,'' to attempt to contact the employer by 
telephone, facsimile, or other appropriate methods, to 
determine whether the hazard actually existed and/or whether 
the employer had taken or was willing to take corrective 
action.\94\
---------------------------------------------------------------------------
    \94\ Senate bill 1423, Sec. 3(b).
---------------------------------------------------------------------------
    This provision ends the complainant's ``entitlement'' to an 
onsite inspection simply because the individual filed a written 
complaint. The era of big government is over. With scarce 
resources, it would be foolish for Congress to mandate that 
OSHA conduct an onsite inspection even after OSHA determined, 
through investigation by phone, facsimile or other device, that 
there was no hazard or violation at the work site.
    The legislation also gives OSHA the discretion on whether 
to conduct an onsite inspection when the Department of Labor 
determines that the complaint was made for reasons other than 
the health and safety of workers. For instance, in 
circumstances where the Department of Labor determines that 
harassment by a disgruntled former employee or competitor 
motivated the complainant, and OSHA determines that workers are 
not at risk, then S. 1423 grants the agency discretion to 
determine whether to conduct an onsite inspection.
    Senate bill 1423 in no way encourages OSHA to ignore 
complaints alleging hazards or violations. The committee 
believes strongly that OSHA should err on the side of caution 
and fully expects OSHA to conduct an onsite inspection if there 
is any doubt as to the existence of the hazard or violation. 
However, in instances where OSHA determines through proof 
offered by phone, facsimile or other means that no hazard or 
violation exists, then the Department of Labor should have the 
discretion not to conduct the onsite inspection and to direct 
its resources toward abatement of real hazards.
    In addition, the current OSHA complaint form (OSHA-7) asks 
the complainant whether he has informed his employer of the 
hazard or violation.\95\ Senate bill 1423 codifies this 
inquiry. The committee notes that the complainant need not 
answer ``yes'' to this question in order to trigger an 
inspection. To the contrary, the response is simply one piece 
of information that an OSHA inspector should have at his 
disposal when the inspector receives the complaint.
---------------------------------------------------------------------------
    \95\ S. Hrg. 104-353, p. 95.
---------------------------------------------------------------------------
    Senate bill 1423, states that when OSHA conducts an onsite 
inspection in response to a complaint, the inspection shall be 
conducted for the limited purpose of determining whether the 
violation or danger exists. The purpose of this provision is to 
preclude OSHA inspectors from engaging in a ``fishing 
expedition'' when they enter the work site.
    At the same time, the committee does not expect OSHA 
inspectors to put blinders on during the inspection process. 
Senate bill 1423 specifically permits the Department of Labor 
to take ``appropriate actions with respect to health and safety 
violations that are not within the scope of the inspection and 
that are observed'' during the inspection.\96\
---------------------------------------------------------------------------
    \96\ S. 1423, section 3(b).
---------------------------------------------------------------------------
    For example, in the course of conducting a complaint 
inspection, an inspector may examine the OSHA 200 log to 
determine whether the employer recorded the accident, injury, 
or violation that led to the complaint, and if an inspector 
found a reasonable basis for expanding the complaint, then such 
an expansion would not be precluded by section 8(f)(1)(E)I). 
Similarly, if an inspector noted another hazard or violation in 
plain view in the course of investigating a complaint, then 
nothing in the above noted section would preclude the inspector 
from citing the employer for those violations.
    Senate bill 1423, as introduced, stated that the 
complainant's name would not appear in the copy of the 
complaint provided to the employer, ``except that the Secretary 
[of Labor] may disclose this information during prehearing 
discovery in a contested case.'' The sponsors did not intend 
that the complainant's name be released on a routine basis.\97\ 
Instead, they intended to provide the Secretary with 
flexibility to balance the complainant's need for anonymity 
against the firm's need to defend itself against the charge and 
to release the complainant's name only in rare instances when 
the firm could meet its extraordinary burden of demonstrating 
the need for the information.
---------------------------------------------------------------------------
    \97\ If the sponsors had intended this, they would have said that 
the Secretary ``shall'' disclose the complainant's name to the 
employer.
---------------------------------------------------------------------------
    To avoid any misconstruction of this provision, however, 
the committee adopted the Jeffords/Abraham amendment during the 
executive session to eliminate the Department of Labor's 
discretion in releasing the complainant's name. Senate bill 
1423, as reported, therefore, does not permit the name of any 
complainant to be released to the employer.
    In addition, Senate bill 1423, as introduced, stated that 
an inspection may only be requested by an employee or an 
employee representative. During the committee hearings, 
concerns were raised, particularly by Robert Georgine of the 
Building and Construction Trades Department, AFL-CIO, that 
bystanders, hospital emergency room personnel, spouses, and 
other individuals would be precluded from filing OSHA 
complaints on behalf of workers. Although the sponsors of S. 
1423 had not intended this result,\98\ they recognized the 
legitimate concerns that were raised at the hearings and, when 
the committee met in executive session, supported the DeWine 
amendment, which removed the restriction on who could file a 
complaint.
---------------------------------------------------------------------------
    \98\ The OSH Act stated that ``employee or employee 
representatives'' may file a complaint requesting a special inspection 
under Section 8(f)(1). See also S. Hrg. 104-353, p. 90.
---------------------------------------------------------------------------
    To further reform OSHA's enforcement process, the committee 
believed that OSHA should focus its resources on the most 
hazardous work sites, while at the same time recognizing the 
unique problems that smaller employers have had in complying 
with burdensome paperwork requirements. The committee noted 
OSHA Assistant Secretary Dear's testimony before the House 
appropriations subcommittee: ``* * * the agency will soon 
announce a revised penalty system, which will substantially 
increase penalty discounts for small employers. * * * In the 
near future, we intend to establish a small business advocacy 
office within OSHA, to ensure that small employers have a voice 
in our enforcement practices and regulatory policy making.'' 
\99\
---------------------------------------------------------------------------
    \99\ Statement of Joseph Dear before the House Appropriations 
Subcommittee on Labor, Health and Human Services, and Education, May 8, 
1996.
---------------------------------------------------------------------------
    Senate bill 1423 provides immediate relief to small 
employers, while focusing OSHA inspection resources on the most 
hazardous work sites. Consistent with Dr. David Whiston's 
testimony before the committee, the legislation codifies the 
long-standing (since 1978) rider in the Labor-Health and Human 
Services (Labor-HHS) appropriations bill that exempts small 
employers (employers with fewer than 11 employees) in 
industries with better than average lost workday records from 
random OSHA inspections. The provision does not exempt small 
employers from complying with OSHA safety and health standards, 
and small employers remain subject to post-accident and 
complaint inspections.
    In written testimony, the Department of Labor conceded that 
``as a general matter, OSHA recognizes that small businesses 
face unique challenges and are deserving of special treatment 
from OSHA.'' \100\ Nevertheless, OSHA believed that 
``compliance assistance and penalty reductions,'' not ``across 
the board exemptions'' were more appropriate.\101\ The 
Department of Labor's testimony failed to note that its fiscal 
year 1996 Labor/HHS appropriations request included the small 
employer random inspection exemption,\102\ and that the 
department's current selection system for conducting targeted 
inspections excludes employers with fewer than 10 employees 
from random safety inspections.\103\
---------------------------------------------------------------------------
    \100\ S. Hrg. 104-353, p. 53.
    \101\ Id.
    \102\ To the extent that the ``lost workday case rate'' in the 
small employer exemption provision only reflects safety as opposed to 
health records, the committee would endorse a technical amendment to 
assure that ``illness'' as well as ``injury'' rates were considered.
    \103\ According to the Congressional Research Service, ``OSHA's 
practice is to exempt from programmed inspections all employers of 
fewer than 10 employees in all industries.'' CRS Memorandum, 
``Workplaces Subject to OSHA Programmed Inspections,'' February 23, 
1996.
---------------------------------------------------------------------------
    The committee strongly believed that OSHA must focus on 
safety and health performance, rather than bureaucratic 
activity, to measure the agency's success. OSHA's assistant 
secretary testified before the House appropriations 
subcommittee that his agency ``eliminated performance measures 
based on inspections, fines and citations, and is developing a 
new performance system tied to real improvements in safety and 
health.'' \104\ In written testimony, OSHA's director stated 
that these quotas ``have contributed to OSHA's reputation as a 
nit-picky, overzealous enforcement agency.'' \105\
---------------------------------------------------------------------------
    \104\ Statement of Joseph Dear before the House Appropriations 
Subcommittee on Labor, Health and Human Services, and Education, May 8, 
1996.
    \105\ S. Hrg. 104-353, p.58.
---------------------------------------------------------------------------
    To facilitate the assistant secretary's efforts, S. 1423 
eliminates OSHA inspector quotas. The legislation prohibits the 
Secretary of Labor from establishing any numerical quota with 
respect to the number of inspections conducted, the number of 
citations issued, or the amount of penalties collected. 
Inspectors must not face institutional pressure to issue 
citations or collect fines. Success for OSHA must depend upon 
whether the Nation's work force is safer and healthier, and not 
upon meeting or surpassing numerical goals for inspections, 
citations, or penalties.

                      alternative methods defense

    Senate bill 1423 contains other important methods to focus 
OSHA on performance rather than bureaucratic activities. The 
legislation requires OSHA to recognize alternative methods of 
compliance that offer equivalent or greater protection to 
workers.
    As a defense to a citation under the OSH Act, section 5 of 
S. 1423 requires the Department of Labor to vacate any citation 
if the employer demonstrates that its employees were protected 
by alternative methods ``equally or more protective of the 
employee's safety and health than those required by OSHA.'' 
This provision forces OSHA to abandon its ``one-size-fits-all'' 
approach to occupational safety and health.
    This defense goes to the heart of OSHA reform. OSHA must 
recognize that it does not have all the answers. The regulators 
at OSHA cannot possibly account for the variety of problems 
that individual supervisors and workers encounter and the 
solutions which they devise.
    The Department of Labor must begin to recognize that all 
solutions to workplace hazards do not originate in OSHA's 
workplace standards division. The ultimate test of 
``performance'' is whether workers are protected, not whether 
firms follow a ``one-size-fits-all'' set of prescriptive rules 
established by those who write the regulations in OSHA's 
Washington, DC, headquarters. Senate bill 1423 requires OSHA to 
recognize alternative methods of worker protection.\106\
---------------------------------------------------------------------------
    \106\ Federal courts have recognized that a citation may be 
inappropriate (although a de minimus notice was sustained) when there 
was no significant difference between the protection provided by the 
employer and that which would be afforded by technical compliance with 
the standard. Phoenix Roofing v. Dole, 874 F.2d 1027 (5th Cir. 1989).
---------------------------------------------------------------------------
    Regrettably, the Department of Labor opposed this 
provision. In written testimony presented to the committee, 
OSHA's assistant secretary stated that this provision ``could 
seriously undermine OSHA standards. * * *'' \107\ Apparently, 
OSHA failed to appreciate its mission, which is to protect 
workers not its standards.
---------------------------------------------------------------------------
    \107\ S. Hrg. 104-353, p. 58.
---------------------------------------------------------------------------
    The agency also claimed the alternative methods provision 
would increase ``costly and time consuming'' litigation as 
employers contest citations. OSHA noted that under current 
rules, ``the contest rate has remained relatively low; under 10 
percent of all citations are contested.'' \108\
---------------------------------------------------------------------------
    \108\ Id.
---------------------------------------------------------------------------
    The Department of Labor's argument is specious. The 
department appears to suggest that administrative convenience 
overrides workplace safety and health. It suggests that success 
for the agency is measured by how many citations it 
successfully prosecutes, rather than whether workers are 
actually protected from occupational hazards. If the contest 
rate were zero, would workers be safer? The committee does not 
believe that to be the case.

                        Employee accountability

    The legislation, under section 5, also codifies the 
employee accountability defense. Under the provision, no 
citation shall issue if the employer can demonstrate that: (1) 
its employees were trained properly and provided with the 
appropriate equipment to prevent the violation; (2) work rules 
to prevent the violation were established, communicated to 
employees, and enforced through appropriate discipline; (3) the 
failure of the employees to follow the work rules led to the 
violation; and (4) the firm took reasonable steps to discover 
the violation.
    The defense is designed to assure that firms are held 
accountable for implementing safety and health standards, while 
at the same time assuring that firms are not unnecessarily 
punished should their employees fail to follow appropriate 
safety and health procedures. The Department of Labor indicated 
that it had no objection to the provision.\109\
---------------------------------------------------------------------------
    \109\ S. Hrg. 104-353, p. 58.
---------------------------------------------------------------------------

                      citation and penalty policy

    Senate bill 1423 further reforms OSHA's enforcement policy 
by revising the health and safety agency's citation and penalty 
system. The legislation permits OSHA inspectors to issue 
warnings in lieu of citations in appropriate situations and 
reduces penalties for nonserious violations of health and 
safety standards.
    The committee believes that OSHA inspectors should focus on 
serious hazards and agrees with the Department of Labor that 
``unnecessary issuance of citations for minor technical 
violations of paperwork and written program requirements 
undermines the agency's efforts to promote the agency 
mission.'' \110\ The current OSH Act does not give inspectors 
the flexibility they need to use ``judgment and common sense to 
protect workers.'' \111\ Instead, the OSH Act, by its terms, 
mandates that inspectors issue citations for all offenses, 
regardless of the severity of the offense.\112\
---------------------------------------------------------------------------
    \110\ OSHA Instruction CPL 2.111, ``Citation Policy for Paperwork 
and Written Program Requirement Violations.''
    \111\ ``The New OSHA,'' p. 9, cited in S. Hrg. 104-353, p. 69.
    \112\ Section 9 of the OSH Act, 29 U.S.C. 658, states that if an 
inspector believes that an employer has violated an OSHA standard or 
the general duty clause, then the inspector ``shall with reasonable 
promptness issue a citation to the employer.''
---------------------------------------------------------------------------
    Senate bill 1423 grants inspectors discretion whether to 
issue a citation after observing a violation. Under the 
legislation, inspectors ``may'' issue a citation. Such 
discretion is intended to be used with care. The committee does 
not intend inspectors to ignore hazards or violations that pose 
a danger to workers. On the other hand, the committee wishes to 
give inspectors the explicit authority to decide against 
issuing a citation if circumstances warrant.
    For instance, where workers have not been placed at risk or 
where an inspector observes that a firm remains in substantial 
compliance with OSHA standards yet has fallen just short of the 
mark, then the inspector may decide not to issue a 
citation.\113\ There is no mechanical formula for making this 
decision. It requires inspectors to use judgment. Without this 
authority, however, inspectors will be under institutional 
pressure to cite firms for all violations observed, and the 
Department of Labor will face uncertainty in designing programs 
like Maine 200 and VPP.\114\
---------------------------------------------------------------------------
    \113\ See testimony of Mark Hyner, president of Whyco Chromium, 
Inc. regarding recommendations of White House Conference on Small 
Business, S. Hrg. 104-316, p. 9-11.
    \114\ For instance, the Department of Labor's written testimony on 
OSHA reform noted that ``Federal case law demonstrates that OSHA 
possesses a greater degree of prosecutorial discretion than was 
recognized in the early years of the agency.'' (S. Hrg. 104-353, p. 
58.) Similarly, OSHA's assistant secretary testified that ``we have 
discovered a great deal more flexibility in the Act than many people 
previously thought was there. The Main [sic `Maine'] program, the 
Focused Construction program and others are essentially departures from 
perceived policy that if any serious violation exists, OSHA is 
compelled to issue a citation to note the violation.'' (S. Hrg. 104-
353, p. 29.)
---------------------------------------------------------------------------
    The bill's language amending section 9(a)(1) of the OSH Act 
is intended to complement section 9(a)(3), which grants 
inspectors the explicit authority to provide technical or 
compliance assistance to an employer in correcting a hazard 
discovered during an inspection or an investigation. The 
committee believes that inspectors should have this discretion 
to improve workplace safety without relying solely on 
citations.
    Senate bill 1423 also provides two specific examples where 
the inspector may issue a warning in lieu of a citation. First, 
the legislation states that inspectors may issue a warning with 
respect to a violation that has no significant relationship to 
employee safety or health.\115\ Second, the legislation permits 
inspectors to issue a warning in lieu of a citation when an 
employer acts in good faith promptly to abate a violation, as 
long as the violation is not a willful or repeated 
violation.\116\
---------------------------------------------------------------------------
    \115\ Although the Department of Labor did not support this 
provision, OSHA Assistant Secretary Joseph Dear testified as follows in 
response to Senator Gregg's question regarding a ``nonserious violation 
structure'' and ``warnings in lieu of a citation structure:''

      I believe we can do that without amending the statute. * * 
      * Clearly, in the case of violations that have no direct 
      relationship with any threat to workers' health or safety, 
      the opportunity exists for OSHA not to issue a citation or 
      to issue a citation and not have a penalty.'' (S. Hrg. 104-
---------------------------------------------------------------------------
      116, p. 93-94.)

    \116\ S. 1423, section 7 ``Warnings in Lieu of Citations,'' 
amending section 9(a)(2) of the OSH Act.
---------------------------------------------------------------------------
    These two instances call upon OSHA inspectors to use sound 
judgment. The committee specifically grants inspectors the 
discretion to issue a warning where workers are not place at 
risk by the violation, or where the employer demonstrates good 
faith to address the hazard promptly. If the inspectors 
believes that a warning would further the purposes of the act 
then the inspector need not issue the citation.
    These changes are consistent with the Department of Labor's 
published policy statement. In its reinvention document, OSHA 
claimed that ``citation for violations of paperwork 
requirements are declining'' and ``OSHA inspectors no longer 
penalize employers who have not put up the required OSHA 
poster.* * *'' \117\ Similarly, OSHA's ``Citation Policy for 
Paperwork,'' CPL 2.111, indicated that in certain circumstances 
where paperwork deficiencies pose no risk to workers, OSHA 
inspectors should not issue citations.
---------------------------------------------------------------------------
    \117\ ``The New OSHA'', p. 8, cited in S. Hrg. 104-353, p. 68.
---------------------------------------------------------------------------
    The Department of Labor did not support providing OSHA with 
discretion on whether to issue citations for violations. One 
the one hand, the department recognized that a strict reading 
of the OSH Act would require an inspector to issue a citation 
after observing a violation. On the other hand, the department 
recognized that its own policies and reinvention initiatives 
depend upon a more liberal reading of the OSH Act, because the 
Main 200 VPP expansion and ``no citation for failure to post 
the OSHA poster'' policies all depend upon OSHA exercising 
discretion in not citing firms for every violation that 
inspectors encounter.
    The department must therefore conclude that it has 
discretion on whether to issue citations. But it opposes 
codifying the very discretion that it exercises because to do 
so would ``undermine both the preventive purpose as well as the 
deterrent effect of OSHA's enforcement program.'' \118\ The 
department apparently believes that such changes to the OSH Act 
would ``signal employers that they need not take preventive 
steps to protect their workers'' and could wait until an OSHA 
inspector arrives before addressing workplace hazards.\119\
---------------------------------------------------------------------------
    \118\ S.Hrg. 104-353, p, 58.
    \119\ Id.
---------------------------------------------------------------------------
    This argument is meritless for at least two reasons. First, 
the employer will not know whether the inspector will issue a 
warning or a citation. Granting the inspector discretion to 
issue a warning in no way provides immunity to bad actors. 
Since the employer cannot rely upon a warning, the firm has no 
choice but to attempt to comply with OSHA standards. 
Accordingly, OSHA's ``preventive'' and ``deterrent'' effects 
are not undermined.
    Second, if OSHA believed that providing such discretion to 
inspectors really undermined the agency's effectiveness, then 
it should not have adopted and publicized its reinvention 
initiatives that rely upon that discretion. By doing so, OSHA 
appears to have undermined its own argument.\120\
---------------------------------------------------------------------------
    \120\ By the department opposing these provisions granting OSHA 
inspectors discretion, the committee is left to wonder whether the 
department believes its inspectors should issue citations for every 
citation that inspectors encounter. Further, the committee is left to 
wonder whether the Department believes citations (rather than warnings) 
should issue for all violations that have no significant relationship 
to safety or health and in situations where the employer in good faith 
promptly abates first time, nonwillful violations.
---------------------------------------------------------------------------
    Senate bill 1423 further reforms OSHA's enforcement process 
by amending the penalty schedule for violations of OSHA 
standards. The legislation reduces penalties for nonserious 
violations and posting or paperwork infractions. By these 
changes the committee reaffirms the importance of OSHA 
standards that directly affect worker safety and health and 
underscores the need to focus on these standards rather than 
the paperwork, posting and other compliance burdens that do not 
directly improve worker protection.
    Under S. 1423, section 8, the maximum penalty for 
``serious'' violations remains unchanged at $7,000 per 
violation.\121\ On the other hand, the bill reduces the maximum 
penalty for other-than-serious, also termed ``nonserious,'' 
violations from a maximum of $7,000 per violation to a maximum 
of $100 per violation. By lowering this amount, the committee 
intends to refocus OSHA inspectors on serious hazards and away 
from nonserious, technical violations of law.
---------------------------------------------------------------------------
    \121\ Similarly, the legislation does not lower the maximum fine 
for ``willful'' or ``repeat'' violations, and it does not in any way 
affect the department's ability to use the ``egregious'' penalty policy 
to pursue particularly flagrant OSHA violators.
---------------------------------------------------------------------------

                         Posting and Paperwork

    In addition, the legislation eliminates penalties for 
posting or paperwork requirements. This provision is designed 
to encourage OSHA inspectors to focus on violations that place 
workers at risk, rather than nonserious paperwork violations. 
The committee noted that in 1995, OSHA inspectors issued the 
most citations (over 3,000 citations) to employers for failure 
to properly maintain a written program under the hazard 
communication standard. In fact, record keeping, the written 
program and information/training under the hazard communication 
standard (generally industry and construction), and container 
labeling were among the most frequently cited standards by OSHA 
inspectors.\122\
---------------------------------------------------------------------------
    \122\ U.S. Department of Labor (Oct. 30. 1995).
---------------------------------------------------------------------------
    The committee intends for the term ``paperwork and posting 
requirement'' to be interpreted consistent with the definitions 
the Department of Labor adopted in its ``posting and 
paperwork'' regulation, CPL 2.111. That regulation applied to 
``record keeping, posting of the OSHA notice, written program 
requirements in standards such as lockout-tagout, permit-
required confined spaces, blood borne pathogens, hazard 
communication, personal protective equipment, and other 
essentially similar requirements found in OSHA standards.'' 
\123\
---------------------------------------------------------------------------
    \123\ OSHA Instruction CPL 2.111, p.2.
---------------------------------------------------------------------------
    To its credit, the Department of Labor conceded that ``in 
the past * * * OSHA cited employers not for genuine safety 
hazards, but also for minor or paperwork violations.'' \124\ 
However, in an attempt to inject some ``common sense'' into the 
enforcement system, ``citations for violations of paperwork 
requirements are declining. * * * OSHA inspectors no longer 
penalize employers who have not put up the required OSHA poster 
if the employer agrees to post it right away. * * * [and] OSHA 
has issued new inspection guidelines that will better assure 
that employers are not fined for failure to have a material 
safety data sheet for a common consumer product. * * *'' \125\ 
OSHA recognized that citations for ``minor technical violations 
of paperwork and written program requirements undermine the 
agency's efforts to promote the agency's mission.'' \126\
---------------------------------------------------------------------------
    \124\ ``The New OSHA'', p. 8, cited in S. Hrg. 104-353, p. 68.
    \125\Id., at p. 68.
    \126\OSHA Instruction CPL 2.111, p.2.
---------------------------------------------------------------------------
    Consistent with the Department of Labor's reinvention 
efforts, Senate bill 1423 assures that firms will not be fined 
for nonwillful, nonserious posting and paperwork violations. 
The committee reaffirms the importance of identifying and 
eliminating serious hazards and intends OSHA inspectors to 
focus on those violations, rather than nit-picky, paperwork 
violations. Although OSHA has made progress in reducing 
citations for posting the OSHA notice and failure to properly 
maintain material safety date sheets, the committee believes 
legislation is necessary to institutionalize the advances that 
have been made.

                      Criteria to Assess Penalties

    Senate bill 1423 expands the criteria that the OSHA Review 
Commission utilizes to assess civil penalties. The current OSH 
Act authorizes the Commission to consider the following 
factors: the size of the firm being charged, the gravity of the 
violation, the good faith of the employer, and the history of 
previous violations.127
---------------------------------------------------------------------------
    \127\ OSH Act, section 17(j), 29 U.S.C. 666 (j).
---------------------------------------------------------------------------
    The OSHA reform legislation includes the following 
criteria; the size of the employer, the number of employees 
exposed to the violation, the likely severity of any injuries 
directly resulting from the violation, the probability that the 
violation could result in injury or illness, the employer's 
good faith in correcting the violation after it was discovered, 
the extent to which employee misconduct was responsible for the 
violation, the effect of the penalty on the employer's ability 
to stay in business, the history of previous violations, and 
whether the violation is the sole result of the failure to 
comply with posting the OSHA notice or maintaining records or 
paperwork.128
---------------------------------------------------------------------------
    \128\ S. 1423, section 8.
---------------------------------------------------------------------------
    Both current law and the reform legislation authorize the 
OSHA Review Commission to consider the size of the firm, and 
current law's ``gravity of the violation'' is roughly 
equivalent to the ``number of employees exposed,'' ``the likely 
severity'' of injury, and the ``probability that the violation 
could result in injury or illness.'' In addition, both current 
law and the reform legislation refer to the good faith of the 
employer and the history of previous violations.
    Accordingly, S. 1423 simply expands the criteria by 
authorizing the Review Commission to consider the extent to 
which employee misconduct was responsible for the violation, 
the effect of the penalty on the employer's ability to stay in 
business, and whether the violation is the sole result of 
posting or paperwork deficiencies. The committee intends the 
Review Commission to consider these criteria as mitigating 
factors.

                               Conclusion

    In sum, the committee places a high priority on OSHA 
reform. As Mark Hyner, president of Whyco Chromium Co. of 
Thomaston, CT, testified: ``OSHA reform is not merely a wish or 
a hope; it is an absolute necessity which is long, long 
overdue. * * * We need change, and we need it now.'' 129
---------------------------------------------------------------------------
    129 S. Hrg. 104-316, p. 9-10.
---------------------------------------------------------------------------
    The committee believes that the OSHA Reform and Reinvention 
Act, S. 1423, will improve worker safety and health, increase 
employee involvement, provide greater flexibility and 
efficiency to OSHA, and reduce unnecessary paperwork burdens on 
workers and supervisors. Private sector resources will be more 
fully utilized, and OSHA, leveraging scarce resources, will 
better focus its resources on the most dangerous hazards at the 
most perilous work sites.
    OSHA can no longer afford to treat all employers alike. In 
our ``post-big government era,'' the Federal Government must 
distinguish between safe work sites and unsafe work sites, and 
concentrate its resources where they are most needed. The 
agency also must distinguish between serious hazards and mere 
technical violations of the law.
    Senate bill 1423 provides the Department of Labor with the 
tools it needs to address our Nation's health and safety needs. 
The committee encourages the Senate to enact this important 
legislation.

                            V. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 27, 1996.
Hon. Nancy Landon Kassebaum,
Chairman, Committee on Labor and Human Resources, U.S. Senate, 
        Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared a cost estimate for S. 1423, the Occupational Safety 
and Health Reform and Reinvention Act, as ordered reported by 
the Committee on Labor and Human Resources on March 5, 1996. 
Because enactment of S. 1423 would affect receipts, pay-as-you-
go procedures would apply to the bill.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                         June E. O'Neill, Director.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    1. Bill number: S. 1423.
    2. Bill title: Occupational Safety and Health Reform and 
Reinvention Act.
    3. Bill status: As ordered reported by the Senate Committee 
on Labor and Human Resources on March 5, 1996.
    4. Bill purpose: To amend the Occupational Safety and 
Health Act of 1970 to make modifications to certain provisions, 
and for other purposes.
    5. Estimated cost to the Federal Government: S. 1423 would 
affect the Occupational Safety and Health Administration's 
(OSHA's) need for budgetary resources in several ways, some of 
which would increase costs and some of which would reduce them. 
The provisions of the bill that would narrow the scope of 
OSHA's regulatory domain--either directly by exempting certain 
employers from inspection or indirectly by permitting employers 
to apply for exemptions--would decrease OSHA's costs. The 
provisions of the bill that would require review of application 
for exemptions and would extend OSHA's jurisdiction to cover 
the federal government and state and local governments would 
increase its costs. In addition, federal agencies may incur 
additional costs to comply with OSHA standards. CBO does not 
have sufficient information to estimate the net effect of these 
provisions on the federal budget.
    With one exception, the costs or savings associated with S. 
1423 would involve discretionary spending. The bill would, 
however, result in the loss of about $1 million a year in 
federal receipts from civil penalties.
    6. Basis of estimate: Section 3 of S. 1423 would prohibit 
the Secretary of Labor from conducting routine inspections of 
or enforcing any OSHA regulation on certain farming operations 
with 10 or fewer employees and on employers with above-average 
safety records and 10 or fewer employees. Although this 
exemption has been included in legislation providing for OSHA's 
appropriations in recent years, S. 1423 would represent a 
change in permanent law. Thus, by permanently reducing the 
scope of OSHA's jurisdiction, this provision would reduce 
potential federal costs. Reliable data on the number of 
employers who would be eligible for this exemption are not 
available, but the savings to OSHA--relative to future costs 
under current law--could be in the range of $30 million to $45 
million annually.
    Section 4 of the bill would exempt employers who meet 
certain qualifications from all safety and health inspections, 
other than those arising from the death or severe injury to an 
employee. In a given year, employers could meet these 
qualifications in two ways. First, they could qualify if they 
had been reviewed under an approved workplace safety and health 
consultation program provided by a state or local government or 
by any other business entity or qualified person certified by 
the Secretary during the preceding year. Second, they could 
qualify if they had not had a work-related employee death 
during the preceding year, had an above-average safety and 
health record, and maintained an employee safety and health 
program meeting specified standards. The Secretary could 
conduct random audits to verify that employers were in 
compliance.
    The effects of this provision on the federal budget would 
depend critically on how many employers chose to apply for 
certification and the percentage of certifications that were 
audited. Even a cursory review of applications would require 
one full-time equivalent employee for every 1,000 applications. 
CBO cannot estimate how many employers would apply for 
certification, but if 100,000 applications were received 
annually, federal costs would be over $5 million. Costs would 
be higher if applications were reviewed more intensively. 
Auditing 1 percent of these applications--a percentage similar 
to the audit rate of the Internal Revenue Service but higher 
than the current percentage of establishments subject to OSHA 
inspection--would add further costs of about $5 million. 
Further, an increase in the number of employers choosing to use 
consultation services provided through state agencies (but 
largely paid for with federal funds) could require an increase 
in spending of $10 million. These certification, auditing, and 
consultation costs would be offset somewhat because OSHA would 
no longer need to conduct inspections of certified employers.
    Section 5 of S. 1423 would provide additional grounds on 
which employers could contest citations for noncompliance 
issued by OSHA. Citations would be vacated if employers could 
demonstrate that employees were protected by methods at least 
as stringent as the OSHA regulation being violated. This 
provision could increase OSHA's litigation costs by increasing 
the incentive for employers to contest citations.
    Sections 7 and 8 of the bill would reduce civil monetary 
penalties for certain violations in some circumstances. For 
violations not considered serious, penalties of up to $7,000 
under current law would be reduced to not more than $100. Civil 
penalties for violations of posting and paperwork requirements 
would be eliminated for violations that were not serious, were 
not repeated, and which occurred before time to correct them 
had expired. In addition, penalties would be reduced by 25 
percent in cases where an employer maintained a qualified 
safety and health program or had an exemplary safety record and 
by 50 percent for employers meeting both criteria. Penalties 
would be reduced by 75 percent if, within one year of the date 
of the citation, the employer was reviewed by an approved 
consultant and complied with any resulting recommendations. 
This latter reduction would not apply if the violation had been 
cited previously, created imminent danger, or caused death or a 
serious accident.
    Several of the penalty provisions in the bill would 
formalize what are for the most part current OSHA policies. 
However, in some instances these provisions would reduce 
penalties below the current level of collections. CBO estimates 
that enacting Section 8 of the bill would reduce governmental 
receipts by about $1 million annually.
    Section 11 would include the federal government and state 
and local governments as employers subject to the jurisdiction 
of OSHA. Currently, the federal government is required to 
maintain an occupational safety and health program and to 
comply with OSHA standards. However, OSHA may only issue a 
``failure to abate'' to agencies not in compliance, and has no 
authority to levy fines. This amendment would enable inspectors 
to levy fines for safety and health violations. Federal costs 
would rise because agencies would be under greater pressure to 
comply; however, CBO cannot estimate how large this increase 
would be.
    Twenty-three states elect to administer OSHA standards. 
These states are already required to include public employees 
in their programs. Based on their cost of administering OSHA 
standards, CBO estimates that making the remaining states 
subject to these standards would cost OSHA about $20 million 
annually.
    7. Pay-as-you-go considerations: The Balanced Budget and 
Emergency Deficit Control Act of 1985 sets up pay-as-you-go 
procedures for legislation affecting direct spending or 
receipts through 1998. The bill would have the following pay-
as-you-go impact:

------------------------------------------------------------------------
                                            1996       1997       1998  
------------------------------------------------------------------------
Changes in outlays.....................      (\1\)      (\1\)      (\1\)
Changes in revenues....................          0         -1         -1
------------------------------------------------------------------------
\1\ Not applicable.                                                     

    8. Estimated cost to State, local, and tribal governments: 
S. 1423 contains an intergovernmental mandate as defined in 
Public Law 104-4. Specifically, the bill would require state 
and local governments to apply federal workplace health and 
safety laws to public workplaces. Currently, the Occupational 
Safety and Health (OSH) Act excludes states and their political 
subdivisions from the definition of employer and covers public 
employees only when a state voluntarily assumes the 
responsibility for administrating the federal program. 
Currently 23 states and two territories are voluntarily 
administering the program to some extent. If S. 1423 is 
enacted, OSH Act provisions would apply in 31 jurisdictions (27 
states, the District of Columbia, and three territories) that 
currently do not apply such laws to public workplaces. CBO 
estimates that approximately 54,500 governmental units 
(including states, counties, cities, towns, and other special 
purpose governments such as school districts) and eight million 
public employees would be affected.
    At this time, CBO cannot precisely estimate the net costs 
of applying federal workplace health and safety laws to state 
and local government workplaces although we believe that they 
are likely to exceed the $50 million annual threshold 
established in Public Law 104-4. These costs would be incurred 
in the first few years after enactment as governments bring 
their workplaces into compliance. State and local governments 
would face additional costs for such activities as modifying 
facilities and machinery, training employees, recordkeeping, 
purchasing safety equipment, and posting safety procedures. CBO 
is in the process of preparing a more complete estimate of the 
impact of S. 1423 on state and local governments.
    9. Estimated impact on the private sector: This bill does 
not include any private-sector mandates as defined in Public 
Law 104-4.
    10. Previous estimate: None.
    11. Estimate prepared by: Federal Cost Estimate: Cyndi 
Dudzinski; State and Local Cost Estimate: Marc Nicole; Federal 
Revenue Estimate: Stephanie Weiner.
    12. Estimate approved by: Robert A. Sunshine (for Paul N. 
Van de Water, Assistant Director for Budget Analysis).

                    VI. Regulatory Impact Statement

    The committee has determined that there will be no increase 
in the regulatory burden imposed by this bill.

                    VII. Section-by-Section Analysis

    Sec. 1. Short Title.--The bill may be referred to as the 
``Occupational Safety and Health Reform and Reinvention Act.''
    Sec. 2. Employee Participation.--The legislation permits 
workers and supervisors to address health and safety matters 
through employee involvement programs by amending Federal labor 
law. The section also contains an important limitation to 
clarify that this labor law provision does not permit an 
employer to bypass its union (if applicable) and in no way 
alters an employer's duty to bargain with its union (if 
applicable) over health and safety issues.
    Sec. 3(a). Inspections.--The legislation codifies the 
annual small employer (10 or fewer employees) appropriations 
rider by exempting from safety inspections small farms, and 
small employers with better than average lost workday rates. 
The bill expands this exemption to health inspections as well.
    Sec. 3(b). Inspection Based on Employee Complaints.--
Employees or employee representatives must contact OSHA in 
writing when filing a complaint (same as current OSH Act).
    The bill codifies the phone/fax system OSHA uses to 
investigate informal (nonwritten) complaints and expands it for 
use with formal (written, signed) complaints. After receiving 
the complaint, the Secretary may use the telephone, facsimile, 
or other appropriate methods to determine whether an onsite 
inspection is necessary. A copy of the complaint must be 
provided to the employer no later than at the time of 
inspection, but the name of those who filed the complaint may 
be withheld by the Secretary upon request.
    Sec. 4. Work Site-Based Initiatives.--The Secretary shall 
establish a program to encourage voluntary efforts to improve 
workplace safety and health. The program provides a 1-year 
exemption from regular programmed inspections and reduced OSHA 
penalties for work sites that have been reviewed by a 
certified, third-party health and safety expert, or whose 
places of employment have established a comprehensive health 
and safety program (that includes employer commitment, employee 
involvement, hazard identification and abatement, and worker 
training) and have an exemplary safety and health record.
    Records of employer self-audits and self-inspections to 
identify hazards (not conducted pursuant to the inspection 
exemption described above) shall be privileged from disclosure 
to the Secretary, as long as the employer has taken measures to 
address any serious hazards identified during the self-audit 
and the Secretary's investigation does not involve a serious 
accident.
    Sec. 5. Employer Defenses.--The legislation codifies the 
employee accountability defense, which provides a defense to an 
OSHA citation when an employee disregards an established health 
and safety work rule that is the subject of the citation, where 
the employer enforces the work rule and provides appropriate 
training to the employee. In addition, the section provides a 
defense to a citation if an employer can demonstrate that it 
has provided an alternative means to protect workers that is 
equally or more protective than the safeguards required by the 
act.
    Sec. 6. Inspection Quotas.--OSHA may not evaluate 
inspectors based on the number of inspections that they 
conduct, violations that they cite, or penalties that they 
collect.
    Sec. 7. Warnings in Lieu of Citations.--The Secretary has 
discretion to issue a warning in lieu of citation if a 
violation has no significant relationship to employee safety or 
health, or if the employer acts in good faith promptly to abate 
a hazard. The Secretary also may provide technical and 
compliance assistance to address a violation discovered during 
the course of an inspection.
    Sec. 8. Reduced Penalties for Nonserious Violations and 
Mitigating Circumstances.--The legislation reduces penalties 
from up to $7,000 to no more than $100 for other-than-serious 
(nonserious) violations. This section also provides for reduced 
penalties if the employer has been inspected by a certified 
third-party safety and health consultant or has an effective 
health and safety program.
    Sec. 9. Consultation Services.--The legislation codifies 
OSHA's consultation program, where OSHA provides funding to the 
States to provide compliance assistance to small businesses. 
The consultants provide advice in identifying and addressing 
workplace hazards without citing the employer for violations, 
as long as the firm promises to abate serious hazards 
identified during the consultation.
    Sec. 10. Voluntary Protection Program.--The legislation 
codifies the Voluntary Protection Program (VPP), where OSHA 
recognizes those work sites that have demonstrated a strong 
commitment to workplace safety and health. The section also 
codifies OSHA's current practice of granting a programmed 
inspection exemption to VPP work sites.
    Sec. 11. Coverage for Public Sector.--The legislation 
extends OSHA coverage to public sector workers, including 
workers at the Federal, State and local levels.
               VIII. ADDITIONAL VIEWS OF SENATOR ABRAHAM

    During the Labor Committee's consideration of S. 1423, I 
was unable to comment on several amendments that were offered, 
so I wanted to take this opportunity to make my views clear.
    First, while I supported the underlying legislation, I 
cosponsored two amendments that I believe improve the bill. The 
first, offered by Senator Jeffords, clarifies that the name of 
an employee who complains to OSHA may not be released to the 
employer at anytime during OSHA's response. As I understand the 
underlying bill, its intent was to permit the complaining 
employees' written statement to be released for good cause 
after they had testified in a contested case. Testimony before 
the committee, however, raised questions whether potential 
release of the name would unnecessarily deter employees from 
filing complaints.
    The other amendment, sponsored by Senator DeWine, strikes 
the sentence ``The Secretary may only make an inspection under 
this section if such an inspection is requested by an employee 
or representative of employees.'' The amendment clarifies that 
nonemployees--such as doctors and family members--may file 
written complaints. While I understand the intent of the bill 
was to prevent disgruntled former employees from filing OSHA 
complaints, witnesses before the committee suggested that 
independent observers sometimes are important sources of 
information regarding work place hazards. This amendment 
ensures that they have access to OSHA.
    A third amendment I supported was the Simon amendment to 
extend OSHA coverage to local, State and Federal employees. 
While some groups view this amendment as an unwarranted 
expansion for OSHA's current jurisdiction, I supported it for 
the following reasons.
    First, Congress recently passed legislation which applies 
Federal labor and safety laws--including OSHA--to the House and 
Senate. The argument for this legislation is that Congress 
should not exempt itself from the laws and mandates it applies 
to other employers. I believe this same argument applies to the 
coverage of public employees under OSHA.
    Second, every argument raised against this amendment--that 
it will cost too much, that it means retraining employees, and 
that it will affect low-risk workplaces--applies to private 
employers and their workplaces as well. In other words, those 
who oppose this amendment wish to maintain a two-tier system 
where private employers are subject to OSHA scrutiny and costs 
while public employers, including the Federal Government, are 
not. I believe this distinction is unjustified.
    While the preceding three amendments were accepted, the 
committee also rejected numerous amendments offered by 
Democratic members. I want to comment on two of those 
amendments.
    One amendment was the criminal penalty amendment offered by 
Senator Kennedy. I support imposing tough penalties upon those 
employers who recklessly and knowingly endanger the lives of 
their employees. At the same time, I believe Senator Kennedy 
failed to demonstrate why it is necessary for Federal penalties 
of this magnitude to be imposed when state laws already address 
these crimes. All fifty States already have laws to cover 
negligent homicide. Before this amendment is adopted, the case 
needs to be made that there is a gap in the legal fabric 
between State and Federal laws addressing negligent homicide. 
Senator Kennedy failed to address this issue.
    In addition, the size of the penalties Senator Kennedy 
wished to impose appear to be out of proportion to existing 
State penalties for similar crimes. The Kennedy amendment would 
punish employers up to 20 years for willfully violating a 
standard that leads to the death of an employee. At the same 
time, someone convicted of willfully killing someone could 
anticipate a sentence of just a fraction that long. In other 
words, the Kennedy amendment would elevate the punishment for 
willfully violating a standard above the typical punishment for 
willfully killing a person. While there may be some level of 
increased Federal criminal penalty that is appropriate for 
violating OSHA standards, I found those prescribed by the 
Kennedy amendment to be excessive compared to existing State 
penalties.
    Another amendment I opposed was the Simon amendment to 
allow the debarment of Federal contractors with a pattern and 
practice of serious OSHA violations. As with the Kennedy 
amendment, I have several concerns with the approach Senator 
Simon takes.
    First, the amendment fails to outline under what procedures 
debarment proceedings would take place. It is my understanding 
that similar debarment provisions under other laws provide 
specific and well-defined processes by which a contractor is 
debarred, yet the Simon amendment fails to either set up its 
own procedures, or refer to those already established under the 
Administrative Procedures Act. Because of this oversight, I am 
concerned that this provision could be abused for political 
purposes.
    Second, in my opinion, the amendment fails to adequately 
define what a ``pattern and practice'' is. Although Senator 
Simon modified his amendment to change ``serious'' to read 
``substantial probability of death or serious physical harm to 
employees,'' this modification does not ensure that this 
provision would only be used against so-called ``bad actor'' 
employers who truly disregard the health and safety of their 
employees.
    The final amendment upon which I would like to comment is 
the Wellstone amendment. His amendment would have extended the 
current whistleblower complaint period from 30 days to 180 days 
and allowed awards of back-pay, compensatory damages, and 
attorney's fees. During debate, Chairman Kassebaum indicated 
that, while she sympathized with Senator Wellstone's intent, 
she preferred to offer a more moderate approach when this 
legislation is debated on the floor. As Chairman Kassebaum made 
clear, protecting whistleblowers from retaliation is something 
that should be addressed by this legislation and I intend to 
support her efforts to bring this matter up when S. 1423 is 
considered by the full Senate.
    In conclusion, I supported S. 1423 because I believe this 
is an issue which the full Senate should have a chance to 
debate. As someone who cares very much about worker safety and 
health, I am encouraged that many of the reforms included in 
this legislation have either been endorsed or implemented 
administratively by the Clinton administration. While there are 
several remaining areas of the bill which I believe can be 
improved upon, I am confident that, under Chairman Kassebaum's 
leadership, these concerns can be addressed on the floor in a 
bipartisan manner.
IX. MINORITY VIEWS OF SENATORS KENNEDY, DODD, HARKIN, WELLSTONE, PELL, 
                          SIMON, AND MIKULSKI

    The committee's majority has voted for a collection of 
amendments to the Occupational Safety and Health Act with one 
unifying theme: to weaken enforcement of workplace safety and 
health standards. The amendments would (1) allow all but a few 
employers to exempt themselves from surprise inspection, (2) 
make it more dangerous for employees to complain about hazards, 
(3) take away the right of workers to an on site inspection 
when OSHA finds reasonable grounds to believe there are serious 
hazards, (4) give the agency the authority not to cite 
employers for serious violations, even if they had caused the 
death of an employee, (5) automatically reduce penalties by a 
minimum of 50% for many employers with serious safety 
violations, even if they have long histories of safety 
violations, their violations are willful and repeat, and the 
violations have led to the death or disability of workers 
through occupational disease or illness.
    For these and other reasons detailed below, we oppose 
enactment of S. 1423 and applaud the Administration's pledge to 
veto this bill if it reaches the President's desk.

                                overview

    Chairman Kassebaum and the committee's majority have 
repeatedly declared their support for the OSHA reinvention 
initiatives the Clinton administration has undertaken. They 
claim that S. 1423 ``simply codifies'' those initiatives. In 
reality, S. 1423's ``reforms'' are vastly different from OSHA's 
reinvention initiatives, and conflict with them in fundamental 
ways. The Administration's strong opposition to S. 1423 is 
proof that the bill's sponsors are hiding behind the wrong 
skirts.
    The first and greatest conflict between the Clinton program 
and S. 1423 involves their differing approaches to enforcement. 
In summary, OSHA reinvention is premised on strong enforcement 
of the law, while S. 1423 undermines or negates enforcement of 
safety and health standards in numerous ways.
    OSHA is changing its fundamental operating model from one 
of command and control to one that provides employers with a 
real choice between a cooperative partnership and a traditional 
enforcement relationship. For example, OSHA's ``Maine 200'' 
program, one of the 1995 winners of the Ford Foundation 
Innovations in American Government Award, offers employers a 
choice of working in partnership with OSHA or facing stepped-up 
enforcement. All of these reinvention activities are premised 
on a strong enforcement program. In fact, as many of the 
participants in these reinvention initiatives have recognized, 
without a strong enforcement program many of these companies 
would not participate.
    In contrast, S. 1423 consists of a series of inspection 
exemptions, means of avoiding citations, defenses to citations, 
penalty reductions and other enforcement relief. Taken 
together, these provisions would seriously undermine OSHA's 
enforcement program. In addition, the bill would give OSHA the 
authority to dismantle its enforcement program altogether, 
frustrating the preventive and deterrent purposes of the 
original OSH Act.
    S. 1423 represents one piece of a larger deregulatory trend 
in the 104th Congress. Notably, the current deregulatory 
climate has already affected employer efforts to protect 
workers. In a recent survey of over 1,000 safety and health 
professionals by Industrial Safety and Hygiene News, about one-
third expected greater budget and staff cuts and thought it 
would be harder to sell management on major safety investments. 
As one management representative said, ``if regulatory 
enforcement or requirements are unlikely, it's human nature to 
make these areas less of a priority.'' \1\
---------------------------------------------------------------------------
    \1\ Industrial Safety and Hygiene News, 12th Annual White Paper 
Report on U.S. Industry Safety and Health Practices, November 1995.
---------------------------------------------------------------------------
    Second, OSHA has developed its reinvention initiatives 
through a careful, ongoing process of pilot programs, 
stakeholder input, and simple trial and error. For example, the 
principle of the Maine 200 Program--leveraging OSHA's limited 
resources by offering employers a choice between a cooperative 
partnership and traditional enforcement--is a young one. But 
two years after beginning the program OSHA is still defining 
the appropriate parameters for similar programs.
    Many of S. 1423's provisions, on the other hand, would 
impose new statutory changes without adequate consideration, 
testing or dialogue with stakeholders. Once enacted, these 
reforms would be very difficult to refine or otherwise modify 
even if serious problems arose during their implementation.
    OSHA's experience during the early 1980's confirms the 
dangers of precipitous change. The agency exempted employers 
from targeted inspections based solely on the number of 
injuries and illnesses recorded on their logs. Some in Congress 
even wanted to enact this records-check exemption into law. 
OSHA soon discovered, however, that a sizable number of 
employers were under-reporting injuries and illnesses at their 
work establishments and that many dangerous workplaces were not 
inspected as a result. In some cases OSHA found that workers 
had been seriously injured or killed at workplaces that the 
agency visited but failed to inspect. The agency subsequently 
eliminated the records-check exemption. If this policy had been 
enacted into law, it would have been much more difficult to 
change.
    Third, OSHA's reinvention initiatives and existing programs 
permit limited inspection exemptions and penalty reductions for 
employers who demonstrate continued commitment to worker safety 
and health. In contrast, S. 1423 requires substantially less 
from employers to qualify for enforcement relief, and rewards 
such employers with substantially greater relief.
    Thus, for example, OSHA's Voluntary Protection Program 
exempts employers who undergo a wall-to-wall inspection and 
follow-up inspections, and demonstrate superior safety and 
health performance. Only a few hundred worksites have qualified 
for a VPP exemption. Yet OSHA estimates that roughly 94 percent 
of U.S. firms would be eligible for an inspection exemption 
under S. 1423's various provisions.
    Fourth, as the Clinton administration recognized in its 
testimony, any effort to improve Federal oversight of workplace 
safety and health must improve worker protection. After all, 
the very purpose of the original act was ``to assure, so far as 
possible, every working man and woman in the Nation safe and 
healthful working conditions.'' Thus, for example, OSHA has 
improved efficiency significantly through the use of telephone 
and facsimile to investigate informal complaints, while 
simultaneously protecting the fundamental worker right to a 
government inspection where serious hazards are present.
    Unfortunately, however, rather than improving worker 
protection, the bill's focus is on granting employers 
inspection exemptions, means of avoiding citations, defense 
against citations, penalty reductions, and other relief from 
enforcement. With the exception of Senator Simon's amendment to 
extend OSH Act coverage to public sector workers, S. 1423 as 
reported does not contain a single provision that strengthens 
worker rights or protections. Instead, it would repeal the 
worker right to an inspection, one of the original OSH Act's 
core principles. In this regard, S. 1423 is seriously 
unbalanced and represents an extremely one-sided approach.
    Fifth, in the regulatory arena OSHA has sought to 
strengthen its standard-setting process to ensure the 
development of common sense protective standards. This strategy 
has included early and continuous stakeholder involvement, the 
use of negotiated rulemaking and non-regulatory approaches 
where feasible, an emphasis on performance-based standards, and 
an effort to rewrite existing rules in plain English.
    By comparison, S. 1423 would weaken every one of OSHA's 
protective standards by relieving employers from OSHA 
enforcement activities, and by allowing employers to challenge 
those standards in every enforcement proceeding. If S. 1423 
were enacted into law, employers would be free to ignore OSHA 
standards.

                      Section-By-Section Analysis

Section 2. Employee participation

    Section 8(a)(2) of the National Labor Relations Act 
protects workers against employer-dominated company or sham 
unions. This does not mean, as the majority baldly claims, that 
the NLRA ``prohibits worker-management safety committees in 
nonunion settings.'' But it does mean that employers cannot set 
up phony employee organizations, dominate and control them, and 
use them to prevent employees from joining together to let the 
employer know their real concerns about workplace safety and 
health.
    Section 2 of the S. 1423 would exempt from the statutory 
protection of the NLRA any employee participation mechanism--no 
matter how one-sided, coercive, unfair, and employer-
dominated--which deals at least in part with worker safety and 
health conditions and which does not involve the negotiation of 
a collective bargaining agreement. This provision would 
overthrow 61 years of labor law protecting the right of 
employees to be represented only by representatives of their 
own choosing and would permit the spread of sham unions dealing 
with issues far outside the scope of a safety and health 
committee.
    Employee participation is vital to a safe work environment, 
and current interpretations of the NLRA allow the creation of 
employee involvement programs--in both union and nonunion 
settings--with appropriate protections to ensure a genuine 
voice for employees. However, this provision of S. 1423 would 
jeopardize the workers' right to choose a representative 
independent of their employer's influence.
    Indeed, the bill would make it legal for employers to 
dominate, interfere with, or otherwise control any employee 
organization, provided that no collective bargaining agreement 
is negotiated. Employers could take advantage of this broad 
exception to NLRA section 8(a)(2) to appoint employee 
``representatives'' who in fact represent only the views of the 
employer. Employers could legally exert undue influence on 
workers to deprive them of their statutory right to an 
independent representative. If a safety committee or other 
employee organization actually acted in the interests of the 
employees but against the wishes of the employer, the bill 
would give the employer the right to terminate the employee 
organization at will.
    The majority tries to find support for its effective repeal 
of National Labor Relations Act section 8(a)(2) in the fact 
that S. 575, a bill sponsored by Senator Kennedy in the 103rd 
Congress, mandated independent, democratic, joint safety and 
health committees and exempted them from the definition of a 
``labor organization'' under section 2(5) of the NLRA. They 
should look somewhere else for support.
    The Committee Report on S. 575 made clear that section 
8(a)(2) was not amended or repealed:

          Although the committee believes that committees 
        established under Title II would not pose a problem 
        under section 8(a)(2) of the National Labor Relations 
        Act, to ensure there will be no conflict between the 
        OSH Act and the NLRA the substitute provides that a 
        safety and health committee established under and 
        operating in conformity with the OSH Act does not 
        constitute a labor organiza- tion. * * * This section 
        does not, however, limit or modify the NLRA's 
        prohibition on company-dominated unions. Thus, if an 
        employer usurps the authority vested in the committee 
        under Title II, the employer's activities may still 
        constitute a violation of the NLRA.\2\
---------------------------------------------------------------------------
    \2\ Report of the Senate Committee on Labor and Human Resources on 
the Comprehensive Occupational Safety and Health Reform Act, 103rd 
Cong., 2nd Sess., S. Rpt. 102-453, page 27 (1992).
---------------------------------------------------------------------------

Section 3. Inspections

            Small business exemption
    Section 3 would exempt from inspection farms with fewer 
than 11 employees and establishments of fewer than 11 employees 
within industries that have injury or lost workday case rates 
below the national average. While small businesses face unique 
challenges, and are deserving of special treatment from OSHA, 
that should come in the form of compliance assistance and 
penalty reductions, where appropriate, not in the form of 
across-the-board exemptions from inspections.
    Although a similar exemption has been added to OSHA's 
appropriations bill for a number of years, workers at smaller 
establishments should be entitled to the same rights and 
protections as workers at larger establishments. As the 
American Society of Safety Engineers testified: ``All Americans 
have a fundamental right to a safe and healthful working 
environment regardless of the size of the firm in which they 
are employed. * * * [section 3(a)] could be interpreted by 
small business that providing a safe and healthful workplace is 
not a priority.'' \3\
---------------------------------------------------------------------------
    \3\ Statement of American Society of Safety Engineers, ``Small 
Business and OSHA Reform,'' Joint Hearing of the Committee on Labor and 
Human Resources and the Committee on Small Business, S. Hrg. 104-316, 
page 99 (December 6, 1995) (``Statement of ASSE'').
---------------------------------------------------------------------------
    In fact, workers at small establishments are already in 
increased danger; businesses with fewer than 11 workers account 
for 33 percent of all fatalities even though they account for 
less than 20 percent of all employees. Moreover, even small 
employers with terrible safety and health records could qualify 
for the exemption if their industry has a low injury rate 
overall. Workers at these establishments need and deserve the 
protections of OSHA's targeted inspection program.
    Even worse, S. 1423 would expand the current exemptions to 
ban targeted health inspections for the first time, without 
regard for the employer's occupational illness record. The 
majority pretends to codify the small business appropriations 
rider, but they do not. In enacting the small business rider in 
past years, Congress has repeatedly recognized the importance 
of health inspections by excluding them from the scope of the 
rider. Indeed, health inspections protect workers from latent 
hazards that many small employers may not even recognize. No 
new justification or evidence has been offered which would 
warrant depriving millions of workers at small establishments 
of this critical protection against health hazards.
    Finally, the data S. 1423 would use to determine 
eligibility for the exemption may be suspect. As one witness 
testified before the Committee, ``many observers believe that 
the BLS annual survey is marred by serious and pervasive 
underreporting, especially among the smaller employers.'' 
Codifying the small business exemption would permanently rely 
on these questionable data.
            Employee complaints
    Section 3 would amend section 8(f)(1) of the OSH Act to 
require employees submitting written complaints to state (1) 
whether the alleged violation has been brought to the 
employer's attention, and (2) whether the employer has refused 
to remove the hazard. This provision will discourage workers 
from filing complaints about unsafe work practices.
    While in current practice OSHA's complaint form asks 
employees whether they have alerted employers about the hazard 
in question, the agency does not require workers to respond. 
Many workers are afraid of retaliation by their employers, and 
OSHA's experience with antidiscrimination complaints suggests 
that in many cases their fears are well-founded. Establishing 
the above statutory requirements--including a requirement that 
the worker indicate ``whether the employer has refused to take 
any action'' to correct the hazard--could easily be 
misunderstood as requiring workers to identify themselves to 
their employers as a prerequisite to filing a complaint.
    As such, this provision may cause a chilling effect on the 
filing of worker complaints, and a consequent reduction of 
worker protections. Alternatively, if workers were unaware of 
these provisions, employers would file procedural challenges to 
complaints which failed to provide the required responses, and 
OSHA might be precluded from conducting an inspection even when 
workers were facing substantial risks.
    The Voluntary Protection Programs Participants' 
Association, a group of employer participants in OSHA's VPP 
excellence recognition programs, opposes this provision of S. 
1423 for similar reasons:

          [W]e believe employees should not be required to 
        state whether or not they informed their employer of 
        the safety complaint. While the VPPPA encourages 
        employees to bring safety concerns to the attention of 
        management before contacting OSHA, we realize that this 
        may not always be possible. Employees must have direct 
        access to OSHA, and they must feel free to report 
        safety or health concerns without fear of retaliation. 
        While we recognize that the current OSH Act contains 
        specific remedies for employer retaliation, many times 
        employees do not know these rights or are not willing 
        to risk losing their jobs.\4\
---------------------------------------------------------------------------
    \4\ Statement of Lee Ann Elliot, Executive Director, VPPPA, ``Small 
Business and OSHA Reform,'' Joint Hearing of the Committee on Labor and 
Human Resources and the Committee on Small Business, S. Hrg. 104-316, 
page 125 (December 6, 1995) (``Statement of VPPPA'').
---------------------------------------------------------------------------
            A worker's right to an OSHA inspection
    In enacting the OSH Act in 1970, Congress established two 
important principles: first, that employers have an obligation 
to provide a safe workplace, and second, that workers have a 
right to an OSHA inspection where dangerous hazards are 
present. Section 3 of S. 1423 would repeal this second 
principle.
    Currently, section 8(f)(1) of the OSH Act provides that 
OSHA ``shall'' conduct an inspection in response to a complaint 
when the agency determines that thee are ``reasonable grounds'' 
to believe that ``a violation of a safety or health standard 
exists that threatens physical harm.'' S. 1423 would change 
``shall'' to ``may'', giving OSHA the discretion to decline to 
inspect even where it concludes that there are clear dangers to 
workers.
    Workers have had the right to an OSHA inspection for 25 
years, and no evidence has been offered to warrant the repeal 
of that right. Proponents of S. 1423 have questioned whether 
protecting this right represents the best use of OSHA's limited 
resources. In fact, as is discussed below, OSHA has 
substantially improved efficiency through reforms in complaint 
handling procedures, while simultaneously protecting this 
fundamental right. With these improvements, a significantly 
higher rate of complaint-based inspections have led to findings 
of serious hazards than was the case in the past.
    In many cases, only an OSHA inspection will ensure that 
workers are adequately protected. In 1992, for example, workers 
at the Lundy packinghouse in North Carolina suffered an 
outbreak of brucellosis, a hog-transmitted disease. North 
Carolina's health agency investigated, and recommended that the 
company purchase only brucellosis-free herds. The company also 
underwent a state consultation visit; the consultant 
recommended employee training and personal protective 
equipment. The employer followed neither recommendation, 
resulting in an epidemic of brucellosis cases that accounted 
for half of the cases reported nationwide.
    The following year, an employee filed a complaint with 
OSHA. In response, the agency conducted an inspection, issuing 
citations and fines totalling $13,000. Only then did the 
employer address the hazard by changing its hog purchasing 
policies, and by providing workers with medical surveillance, 
treatment, education and training.
    In sum, workers' longstanding statutory right to an 
inspection represents a sound public policy that should not be 
overturned. As the American Industrial Hygiene Association 
testified before the House Economic and Educational 
Opportunities Committee, ``whatever change occurs in our 
federal health and safety law, a worker's right to ask for help 
in preventing injuries and illnesses should be a mainstay of 
any legislative action.''
            Limiting the scope of inspections
    Section 3 of S. 1423 would also prohibit OSHA from 
expanding a complaint inspection beyond the hazards identified 
in the complaint. The only exception would be for violations 
``observed'' during the inspection. This would exclude worksite 
areas not covered by the complaint, as well as many hazards 
(such as airborne toxins) which cannot be observed. Thus, if a 
compliance officer, responding to a complaint, encountered an 
employer who blatantly disregarded worker safety, or discovered 
a pattern of serious injuries by reviewing the employer's 
injury log, the compliance officer would be precluded from 
expanding the inspection to assure protection of all workers at 
the facility.
    This provision would substantially impede OSHA's ability to 
protect workers. For example, last January, OSHA responded to a 
complaint at Glacier Vandervill, a manufacturer of fluid film 
bearings located near Columbus, OH. The complaint alleged that 
employees exposed to lead were not receiving blood lead level 
evaluations as required by the standard. When OSHA entered the 
plant and examined the injury/illness logs, the compliance 
officer discovered large numbers of lead exposure violations--
but also found that workers had suffered amputations and 
crushing injuries from mechanical power presses. In response, 
OSHA then expanded the investigation to include the entire 
facility. The agency eventually cited the company for 
overexposure to lead, failure to establish a hearing 
conservation program, deficiencies in power press guarding and 
safety controls, violations of the standard on confined spaces, 
fall protection violations, as well as an inadequate lockout-
tagout program. Under S. 1423, however, OSHA's inspection would 
have been limited to checking for blood lead problems and the 
agency would have been precluded from protecting workers from 
other substantial hazards.
    Similarly, when OSHA expanded a complaint-based inspection 
at Eastern Prestressed Concrete in Hatfield, PA, the agency 
found serious hazards such as unsafe industrial trucks, 
improper use of cranes, unguarded floor openings, and unguarded 
conveyor belts, saws and grinders. The OSHA Area Director 
commented that ``with 30 years'' experience inspecting heavy 
equipment I have never observed equipment that was operated in 
such a hazardous condition.'' Many of these hazards were not 
raised in the initial complaint. As a result, under S. 1423, 
OSHA would have been precluded from identifying many of these 
hazards and protecting workers from them.
            The use of telephone and facsimile machines
    S. 1423 would allow OSHA to investigate both formal and 
informal complaints by telephone, facsimile or other 
appropriate methods instead of conducting an inspection. While 
OSHA has itself found these investigation methods desirable for 
informal complaints, they should not be used at the expense of 
the fundamental worker right to an inspection.
    Under current law, OSHA handles worker complaints by 
distinguishing between formal and informal complaints. If a 
worker files a written, signed, formal complaint, and OSHA has 
reasonable cause to believe that a hazard or violation exists, 
OSHA is required by section 8(f) of the OSH Act to conduct an 
inspection. In contrast, if OSHA receives an informal complaint 
(such as a telephone call or an unsigned writing), the agency 
has discretion under section 8(a) of the OSH Act to conduct an 
inspection or to opt for an alternative method of 
investigation. Traditionally, due to resource constraints, OSHA 
has responded to most informal complaints by writing a letter 
to the employer inquiring about the alleged hazards, and 
awaiting a response by letter, a process that often takes 
several weeks.
    More recently, the agency has conducted pilot programs in 
which it used telephone calls and facsimile transmissions 
instead of letters to resolve informal complaints. Workers are 
offered a choice between this expedited informal complaint 
process and the traditional formal complaint process (with an 
inspection if the complaint gives OSHA reasonable cause to 
believe that workers are exposed to hazards). In this manner, 
these programs have protected workers' statutory right to a 
government inspection where they are exposed to serious danger. 
OSHA is now expanding these pilot programs nationwide.
    Proponents of S. 1423 contend that roughly half of OSHA's 
complaint-based inspections turn up no serious hazards, and 
that S. 1423's proposed change (to allow the use of telephone, 
facsimile and other investigative tools for both informal and 
formal complaints) is necessary to address this problem. This 
change, however, would effectively repeal workers' statutory 
right to file a formal complaint and obtain an inspection.
    In addition, employers could routinely be notified in 
advance of the likelihood of an OSHA inspection. The element of 
surprise is critical to the success of the agency's enforcement 
program; that is why giving advance notice of an inspection to 
an employer constitutes a criminal offense under section 17(f) 
of the OSH Act. S. 1423 encourages OSHA to give notice to 
employers before every inspection, which would in turn 
encourage employers to ignore hazards until OSHA calls. Such a 
change in the law would substantially undermine the OSH Act's 
preventive and deterrent purposes.
    Moreover, it is simply wrong to assume that the agency is 
wasting its resources every time a complaint inspection results 
in a finding of no violations. Workers exposed to toxic, 
airborne substances such as lead may be unable to determine the 
extent of their exposures without an OSHA inspector's help. An 
inspection conducted to make such a determination would not be 
a waste of agency resources even if the exposure levels turn 
out to be within safe margins. Similarly, when OSHA finds a 
serious hazard that is not covered by the Act's standards or 
general duty clause, it is not a waste of resources for the 
agency to inspect and recommend appropriate abatement actions 
to the employer, even though there is no violation of the act.
    Finally, rather than improving efficiency, this provision 
of S. 1423 could well increase the time between the filing of a 
formal complaint and abatement of the hazard. In cases in which 
OSHA chose to conduct an inspection, the inspection would be 
delayed several days to allow for the exercise of telephone and 
facsimile procedures.
    In fact, OSHA has substantially improved the efficiency of 
its complaint handling procedures without sacrificing the 
fundamental worker right to an inspection. The agency's pilot 
programs dramatically reduced the time period from the filing 
of an informal complaint to abatement of the hazard. In 
addition, with the promise of speedy abatement, more workers 
chose to file informal complaints. Workers filed formal 
complaints only where they believed them to be absolutely 
necessary, such as when the worker had already raised his or 
her concern with the employer to no avail. As a consequence, 
preliminary data indicate that OSHA found serious hazards in a 
much higher percentage of cases (an early estimate of 67 
percent as opposed to roughly 54 percent before the pilots).
    OSHA is now in the process of expanding the use of 
telephone and facsimile transmissions for the investigation of 
informal complaints to all offices. Significantly, workers are 
still entitled to an inspection if they choose to file a 
formal, signed, written complaint that gives the agency 
reasonable cause to believe that a hazard exists. The 
alternative investigative methods of telephone and facsimile 
transmissions are not acceptable where a worker seeks to 
exercise his or her statutory right to file a formal complaint 
and obtain an inspection.
            Determining the complainant's motivation
    Section 3 of S. 1423 would allow OSHA to forego a complaint 
inspection if it determines that the complaint was made for 
reasons other than safety and health--even where the workers in 
question are at substantial risk. The agency's determination as 
to whether to inspect following a complaint should be based on 
the likelihood that workers are at risk--not on the motivation 
of the complainant. Where workers face substantial hazards, 
OSHA should act--and should be compelled by statute to act--to 
protect them.
    Moreover, it would be very difficult for OSHA to determine 
the complainant's motivation. This exercise would consume 
scarce agency resources and delay inspections. Ultimately, the 
agency should continue to inspect where it has reasonable cause 
to believe that workers are at risk.
    No evidence was ever presented to the committee in support 
of this provision. And even the hypothetical examples the 
majority puts forward to support the provision fail to provide 
any support. A ``disgruntled former employee or competitor'' is 
not an employee with a right to an OSHA inspection under 
current law. OSHA already has discretion to refuse to inspect 
in response to an otherwise valid written complaint.

Section 4. Worksite-based initiatives

    Section 4 of S. 1423 would authorize exemptions from 
scheduled inspections if an employer (1) had been inspected 
under a consultation program or independent audit by a 
certified auditor during the preceding year, or (2) has an 
``exemplary'' safety and health record and maintains a safety 
and health program. This provision poses a number of 
significant problems.
            The use of broad-based exemptions
    This provision--like many of OSHA's own reinvention 
initiatives--seeks to leverage the agency's limited resources, 
encourage employer/employee cooperation, and reduce the 
adversarial nature of the relationship between OSHA and 
employers. Nevertheless, the broad exemption described above 
does not represent the best balancing of these goals with 
OSHA's statutory mission to protect workers.
    Currently, OSHA allows an exemption from scheduled 
inspections only under limited circumstances, when an employer 
demonstrates a superior commitment to worker safety and health. 
Under the VPP program, for example, participants must meet 
stringent criteria that demonstrate continued excellence in 
safety and health as a prerequisite to an exemption. Moreover, 
VPP sites receive a comprehensive on-site inspection by OSHA 
representatives and are subject to periodic monitoring 
inspections as a condition of continuing VPP approval. Only a 
few hundred worksites have qualified for a VPP exemption.
    By contrast, section 4 of S. 1423 would grant a broad 
exemption from targeted inspections. In fact, OSHA estimates 
that roughly 94 percent of U.S. firms would be eligible for an 
exemption under S. 1423's various provisions.
    Under section 4, for example, an employer could qualify for 
an exemption just by undergoing even a very limited 
consultative visit. Unfortunately, all too often such visits do 
not reflect employer commitment to protect workers. For 
example, MIT Tank Wash of Garden City, GA, received a state 
consultation visit in 1990, and was told to purchase a 
retrieval system to rescue workers cleaning tanks. The employer 
purchased the equipment, but returned it three months later. 
Subsequently an employee cleaning a chemical tank was overcome 
by toxic fumes and died. The employer was sentenced to 6 months 
in prison and fined $190,000. MIT Tank Wash could have 
qualified for a inspection exemption under S. 1423.
    On the introduction of S. 1423, Chairman Kassebaum 
recognized that ``[t]o be effective, OSHA must use its 
resources efficiently.'' The proponents of S. 1423 contend that 
section 4's exemption program would further this goal, by 
allowing OSHA to focus its limited resource on the most 
dangerous workplaces. In fact, the opposite is true: this 
provision would require the agency to shift substantial 
resources away from targeted inspections, to the processing of 
exemption certification paperwork submitted by employers.
    OSHA estimates that 6.4 million employers would be eligible 
for section 4's exemption program. Assuming that only 10 
percent of these eligible employers actually applied for the 
exemption, OSHA estimates that the administrative costs of 
processing 640,000 applications would involve several hundred 
agency employees, at a cost of up to $30 million. (Notably, BLS 
spends roughly $20 million annually to process 280,000 annual 
survey forms.)
    While section 4 appears to exclude monitoring inspections, 
OSHA believes that such inspections would be necessary to 
ensure that the employers that apply for exemptions actually 
protect their workers. If OSHA chose to audit just 10 percent 
of these applications to ensure such protection, the agency 
estimates that these 64,000 audits would involve even more 
agency employees, at a cost of up to $45 million. Together, 
these processing and auditing costs could consume more than a 
quarter of OSHA's current appropriation. As a result, OSHA 
would be forced to curtail targeted inspections or cease 
conducting them altogether.
    The majority argues that resource constraints are not 
really a problem for OSHA, and offers as proof that OSHA has 
proposed ``new and burdensome regulations on ergonomics.'' In 
fact, OSHA has never issued a proposed rule and which has been 
banned for two consecutive fiscal years from doing so.
            Third-party certification
    In addition, there are many unresolved issues surrounding 
third-party certification. The Vice President's National 
Performance Review recommended that OSHA consider the use of 
employer self-audits as a leveraging device, with the audits 
being performed by employees or by third parties.
    In 1994, however, at an OSHA stakeholder meeting, 
representatives of industry and labor expressed serious 
reservations about the use of third-party certification in the 
area of occupational safety and health. Similarly, in a 1995 
poll conducted by the National Safety Council Safety and Health 
Journal, respondents rejected third-party certification as 
desirable reform by nearly a two-to-one ratio (42 percent to 23 
percent). Participants at the 1994 stakeholders' meeting raised 
questions such as: Who would certify the third parties? What 
would the certification criteria be? Should OSHA divert its 
limited resources to facilitate a costly certification process? 
What is the legal liability of private sector experts 
certifying a workplace which later suffers a serious accident? 
Would third-party auditors be agents of OSHA, employees or the 
employer? Who would pay for the audit? If the employer pays, 
would it create a conflict of interest?
    Conflicts of interest would be almost unavoidable under the 
scheme the bill would create. Since the third party auditor 
would be hired by the employer and would depend on the 
employer's repeat business and good will for his livelihood, 
there would be enormous incentives to overlook problems and to 
certify employers despite the existence of serious hazards to 
the employees.
    VPPPA employers warned the committee that ``because the 
third-parties would be selected and paid for by the facility, 
the possibility exists that the auditors may tell facility 
managers what they want to hear.'' 5 These employers have 
also pointed out that ``employees are more likely to trust OSHA 
with their safety and health issues'' than third-party auditors 
who are paid by their employer.
---------------------------------------------------------------------------
    \5\ Statement of VPPPA at 126.
---------------------------------------------------------------------------
    Some stakeholders urged OSHA to restrict third party audits 
to the employer's safety and health program rather than to the 
entire workplace. Others encouraged OSHA to evaluate the 
effectiveness of existing audit programs in the context of 
corporate-wide settlements and existing safety and health 
committees before embarking on the untested waters of third-
party certification.
    The resource issues are particularly troubling. Again, this 
provision would require OSHA to reallocate substantial 
resources away from inspecting the most dangerous worksites, 
towards certifying thousands of safety and health consultants. 
As one witness observed, ``OSHA would become an agency that 
reviewed employer paperwork and certified consultants, not one 
that investigated workplace hazards.''
    Requiring OSHA to certify individuals to provide a worksite 
evaluation leading to exemption from inspection would place an 
enormous burden on the agency, both in the pre-certification 
process and in quality control. Certification is a costly, 
time-consuming process, as OSHA has seen when it accredits 
testing laboratories under existing statutory authority; each 
such certification costs roughly $40,000.
    At the same time, reliance on the private sector for such 
certifications would leave third-party consultants with little 
accountability, except to the employers that hired them. 
Similarly, exempting the employer's worksite from the 
possibility of on-site inspections would minimize employer 
accountability for safety and health audits and for maintaining 
a safe workplace.
    Congress would never be so foolish as to grant audit 
exemptions to employers who hire CPAs to certify to the IRS 
that their tax returns are accurate and in compliance with the 
law. We know that such a system would be systematically abused. 
Why would we be less protective of worker health and safety 
than we are of the government's tax revenues?
    Ultimately, although we are skeptical, the concept of 
third-party certification may have some utility as a means of 
leveraging scarce resources. But is simply far too early to 
tell if the concept is workable in the context of worker safety 
and health, let alone so reliable that it deserves codification 
in the OSH Act. Rather than enacting a broad-scale statutory 
scheme, OSHA should be allowed to continue to explore this 
concept further through pilot programs. The results of this and 
other similar initiatives should be reviewed and the necessary 
monitoring and quality control mechanisms must be in place 
before decisions are made as to whether third-party 
certification should be used on a broader scale.
            ``Exemplary'' safety and health records
    Section 4 also allows exemptions for employers who have an 
``exemplary'' safety and health record (fewer lost workdays 
than the applicable industry average) and a safety and health 
program (including procedures for assessing and correcting 
hazards, employee participation, and employee training). While 
we are glad to see that the committee's majority recognizes the 
importance and effectiveness of safety and health programs, a 
broad-scale inspection exemption is not warranted in these 
circumstances. Instead, we would prefer to see such programs 
mandated for all employers and a health and safety standard 
should be promoted through penalty reductions, incentive 
programs such as Maine 200 and Focused Inspections in 
Construction, and the development of a Safety and Health 
Program Standard.
    Firms with unexceptional safety records would be deemed 
``exemplary'' under the bill, even though many of them might be 
quite dangerous. For example, according to the North Carolina 
Occupational Safety and Health Program, the Imperial Foods 
processing plant where 25 workers were killed in a fire in 1991 
had a lower than average lost workday injury rate and would 
have been considered an exemplary employer under S. 1423.
    The bill's exemption criteria pose a particular problem in 
high-hazard industries where injury rates are excessive across 
the board, For example, in meatpacking, the average injury rate 
is 36 per 100 workers, and the average lost time injury rate is 
19 per 100 workers. Yet firms with this record of injuries 
would be considered exemplary employers and eligible for 
exemption even though their injury rates are five times higher 
than the national average for all injuries.
    In fact, the use of an employer's injury data as a primary 
or exclusive basis for enforcement relief poses problems in and 
of itself. First, the bill allows OSHA to conduct random 
audits, but would only allow the agency to audit an employer's 
records, not actual working conditions. Thus, unsafe employers 
who declare themselves eligible for an exemption would not be 
held accountable for their failure to protect workers. As the 
American Society of Safety Engineers testified ``the 
legislation should require an actual physical assessment of the 
facility.'' \6\ The VPPPA employer association concurred that 
precluding OSHA from conducting monitoring inspections would 
``reduc[e] the credibility of these [third-party] 
inspections.'' \7\ OSHA learned first-hand in the 1980's that 
enforcement exemptions based solely on employer-provided data 
will encourage some employers to falsify their records.
---------------------------------------------------------------------------
    \6\ Statement of ASSE at 100.
    \7\ Statement of VPPPS at 126.
---------------------------------------------------------------------------
    Second, the unpredictability of small employer injury and 
illness rates further demonstrates the difficulties posed by 
section 4. In general, such rates have no predictive value: a 
small employer may have no reportable incidents one year, and 
then have an extremely high rate the next year based on just 
one or two incidents. Thus, for example, workers' compensation 
insurers give small employers a pooled or capped experience 
rating because of the high year-to-year volatility of claims 
and injuries.
    Third, section 4 ignores hazards that pose long-term health 
risks to workers. While an employer's injury data are relevant 
to assessing the need for an OSHA inspection, it would be 
unwise to use them as the sole or primary basis for an 
inspection exemption.
    Finally, the bill's measure of an ``exemplary'' record is 
the raw number of lost workdays; the measure is not defined as 
a rate, such as lost workdays per 1,000 employees. This 
radically skews the measure in favor of smaller companies. A 
dangerously unsafe company with a 100 percent injury and 
illness rate among its 20 employees would be far more likely to 
have a below average number of lost workdays than a company 
with 1,000 employees whose injury rate was only 3 percent.
    We object to the majority's misuse of the fact that labor 
union officials participated in a Maryland state occupational 
safety and health task force to imply that they support the 
inspection exemptions in S. 1423. In fact, the Maryland AFL-CIO 
strongly dissented from the Maryland task force report that the 
majority cites and opposes ``any measures toward self-
inspection or self audit.'' \8\
---------------------------------------------------------------------------
    \8\ Letter from Edward A. Mohler, President, Maryland State and 
D.C. AFL-CIO to Edward M. Ranier, Esquire, Chairman, MOSH Task Force 
(December 5, 1995).
---------------------------------------------------------------------------
            OSHA access to employer self-audit records
    In her opening statement at the Committee's November 29, 
1996 hearing, Chairman Kassebaum declared that S. 1423 
``encourages the agency to focus on the most serious hazards 
and the most dangerous worksites.'' Yet that objective is 
seriously undermined by section 4 of the bill, which bars OSHA 
from reviewing certain records of safety and health 
inspections, audits or reviews unless a worker was killed or 
injured on the job. Prohibiting OSHA's access to these records 
will impede the agency's effort to target its limited resources 
at the worst worksites. (The bill includes another exception--
allowing OSHA access when the employer has not corrected the 
hazards identified in the self-audit--but it would be 
impossible for OSHA to know whether this was the case without 
first having access to the records.)
    This provision does not represent an appropriate balance 
between an employer's desire for confidentiality and OSHA's 
need to determine whether employers were aware of serious 
hazards prior to an inspection. Moreover, this provision could 
be read to deny OSHA access to a host of records required by 
the agency's own standards and regulations, including exposure 
monitoring, process hazard evaluation reports, hearing 
conservation tests, and other similar records.
    Reasonable access to employer self-audit records is 
essential to OSHA's efforts to protect American workers. In 
some cases, this information will be critical to OSHA for 
enforcement purposes. More significantly, at a time when 
promising initiatives are underway at OSHA to evaluate and 
reward efforts by employers to improve employee health and 
safety, OSHA would be completely unable to assess the 
effectiveness or good faith of employer-initiated safety 
programs without access to underlying documentation. Finally, 
allowing employers to refuse to disclose their health and 
safety records will, for some employers, remove the incentive 
to take prompt and effective action to eliminate any hazards 
disclosed by these in-house reports.
    In practice, an employer's self-audit records are not used 
against employers who have made good faith efforts to protect 
their workers. As a result, this provision would only protect 
employers who have identified hazards and consciously failed to 
correct them.

Section 5. Employer defenses

            Employer knowledge
    Current law prevents OSHA from issuing citations for 
serious violations unless the employer knew or ``could'' have 
known of the violation. Section 5 of S. 1423 would prevent OSHA 
from issuing a citation for any violation unless the employer 
``knew, or with reasonable diligence would have known'' of the 
violation.
    Although the impact of these changes is not altogether 
clear, they appear to be intended to increase the agency's 
burden of proving violations of the Act or OSHA standards. The 
agency's ability to protect workers could well be compromised 
as a result.
    No testimony was offered to justify this change in the law.
            Employee misconduct defense
    Section 5 also attempts to codify the so-called ``employee 
misconduct'' defense. In its testimony on S. 1423, OSHA 
supported the codification of this longstanding employer 
defense, to the extent that its requirements track existing 
OSHA case law. This provision would require the employer to 
prove this affirmative defense, as is now the case.
            The ``alternative methods'' defense
    Section 5 would also create an entirely new statutory 
defense to an OSHA citation, based on an employer's 
demonstration that employees were protected by alternate 
methods equally or more protective than those required by the 
standard the employer violated. This provision could seriously 
undermine OSHA's standards, and in turn every enforcement 
action into a costly and time-consuming variance proceeding.
    The OSH Review Commission and the courts have held 
repeatedly that when OSHA's standards require employers to 
adopt specific precautions for protecting employees, employers 
must comply in the manner specified. Under current law, 
employers have the right to select alternative means of 
compliance only when literal compliance is impossible or would 
pose a greater hazard to employees. In ``greater hazard'' cases 
the Commission requires an employer to show that a variance has 
either been sought or would be inappropriate.
    Under these rules, the contest rate has remained relatively 
low: under 10 percent of all citations are contested currently. 
Under this provision of S. 1423, however, virtually every 
employer cited for violations of the OSH Act or OSHA standards 
could claim that an alternative means of compliance was as 
effective as the standard in question. As the VPPPA employer 
association recognized, this provision ``might create a 
loophole by allowing employers to circumvent OSHA standards * * 
* as well as create additional litigation.'' In effect, 
standards would no longer be mandatory, but would be subject to 
challenge--and potential waiver) in every individual contested 
case.
    As a consequence, judges with little or no safety and 
health expertise would make determinations as to the adequacy 
of worker protections, rather than trained safety and health 
professionals. This provision could have a substantial impact 
on agency resources, and greatly increase litigation burdens on 
OSHA, the OSH Review Commission, and the Federal courts.
    The provision does not require that the employer take any 
action to request a variance or to obtain an independent 
opinion about the appropriateness of its alternative 
compliance. It encourages employer to ignore accepted practices 
and take chances with their employees' safety.

Section 6. Inspection quotas

    Section 6 of the bill would prohibit OSHA from establishing 
``quotas'' for inspections, citations or penalties. For many 
years, Congress used inspections, citations and penalties as 
measures of OSHA's performance. As a result, the agency used 
them as performance measures as well. In all likelihood, these 
performance measures encouraged OSHA compliance officers to 
improve their personnel evaluations by maximizing the number of 
violations cited and the penalties assessed. By doing so, they 
contributed to OSHA's reputation as a nitpicky, overzealous 
enforcement agency.
    To address this problem, OSHA eliminated these performance 
measures last year. OSHA is currently in the process of 
developing a performance measurement system that is more 
closely tied to improvements in worker safety and health. We 
support this section of S. 1423.

Section 7. Warnings in lieu of citations

    Currently, the OSH Act provides that OSHA ``shall'' issue a 
citation for each violation it discovers during an inspection. 
Section 7 of S. 1423 would change this rule to ``may.'' 
Although federal case law demonstrates that OSHA possesses a 
greater degree of prosecutorial discretion than was recognized 
in the early years of the agency, this provision would remove 
any limits to such discretion.
    Section 7 has generated much confusion, even among its 
authors. For example, in introducing S. 1423 Senator Gregg 
described the bill as including ``warnings in lieu of citations 
for nonserious violations.'' In fact, the bill would allow OSHA 
to issue warnings instead of citations for all violations, 
including willful, repeat, failure to abate, and serious 
violations.
    Similarly, in her opening statement at the committee's 
November 29, 1996 hearing, Chairman Kassebaum stated that S. 
1423 ``encourages employers voluntarily to improve workplace 
safety.'' Yet that objective is seriously undermined by section 
7 of the bill, which would allow OSHA to issue warnings instead 
of citations whenever an employer acts promptly to abate a 
violation. Such a policy would encourage employers not to take 
voluntary steps, but to wait until an OSHA inspector arrived to 
conduct an inspection. By eliminating both the preventive and 
deterrent functions of OSHA's enforcement program, section 7 
would turn that program on its head.
    Witnesses at the hearings on S. 1423 also demonstrated 
confusion about the impact of section 7. For example, the Labor 
Policy Association testified that it was ``pleased that S. 1423 
gives discretion to OSHA to issue warning notices in lieu of 
citations in cases where an alleged violation poses no threat 
to employees.'' In fact, that is OSHA's current policy, known 
as the de minimis rule. S. 1423 would go much farther, allowing 
the agency to issue warnings instead of citations even where 
workers are killed, seriously injured, or permanently disabled 
by occupational disease.
    In addition, the changes proposed in this section might be 
misunderstood by some employers as a limitation on OSHA's 
authority to issue citations. For example, paragraph 2(B) 
allows the issuance of a ``warning in lieu of a citation'' for 
violations that the employer ``acts promptly to abate.'' Even 
though it does not require OSHA to issue a warning in such 
circumstances, we agree with Assistant Secretary Dear that this 
provision may signal employers that they need not take 
preventive steps to protect their workers prior to an OSHA 
inspection. Such a signal would undermine both the preventive 
purpose as well as the deterrent effect of OSHA's enforcement 
program.
    Ultimately, prompt abatement of hazards should be 
encouraged, but it should be encouraged through penalty 
reductions, not by eliminating any citations whatsoever for the 
violations. Otherwise, employers who made good faith efforts to 
protect workers before an OSHA inspector arrived at their door 
would be treated the same as neglectful employers that ignored 
their workers' safety until the inspection.
    Charles Jeffress, Director of North Carolina's State OSHA 
Program, made a similar point in testifying before the House 
Committee on Economic and Educational Opportunities:

          Warning tickets will encourage employers to gamble 
        with their employees' lives and health, knowing they 
        have to take no precautions until OSHA arrives. There 
        are employers who are willing to take big risks with 
        safety in the mistaken belief that it will reduce costs 
        or provide some competitive advantage. To say to these 
        employers, ``there will be no penalty for violating 
        safety and health rules as long as you fix things after 
        OSHA has found you'' is to convey the wrong message. I 
        urge you not to send them this message.

Section 8. Penalty reductions

    Section 8 of the bill would make several major changes in 
OSHA's penalty policies, reducing penalties for nonserious 
violations, limiting penalties for recordkeeping or 
``paperwork'' violations, revising the factors to be considered 
in assessing a penalty, and providing for substantial penalty 
reductions in specific situations. These provisions would 
seriously undercut the preventive and deterrent goals of OSHA's 
penalty policies. For example, while OSHA's penalty reduction 
policies generally reward employers for protecting workers 
before OSHA arrives at the doorstep, many of these changes 
would reward employers who did little until OSHA arrived.
            $100 penalty limit for non-serious violations
    Section 8 would reduce the maximum penalty for non-serious 
violations from $7,000 to $100. As a general matter, OSHA 
typically does not assess penalties against employers for non-
serious violations: in FY 1995, for example, employers were not 
penalized for 92 percent of all non-serious violations. 
However, the average penalty for the other 8 percent of these 
violations was $739. These violations included such hazards as 
inadequate fire exits and failure to monitor excessive noise 
levels. OSHA needs to retain the authority to levy significant 
penalties for violations which may threaten workers even if 
they do not technically meet all of the criteria to be 
classified as serious.
            Posting and paperwork violations
    As part of its reinvention effort, OSHA has taken steps to 
limit citations and penalties for paperwork violations 
unrelated to safety and health. For example, citations for the 
most common paperwork violations declined 35 percent between 
1991 and 1994. OSHA's compliance officers no longer cite for 
minor paperwork requirements; they advise and educate the 
employer instead. To illustrate, for years OSHA issued 
thousands of violations annually for failing to put up the 
required OSHA poster. Last year, OSHA decided just to give 
employers a poster and ask them to put it up. The number of 
poster violations has dropped from several thousand a year to 
near zero. Similarly, if there are no injuries or illnesses to 
record, OSHA no longer cites an employer for failing to 
complete the agency's recordkeeping requirements.
    At the same time, the agency needs to retain the discretion 
to penalize employers who under-report injuries and illnesses. 
Without accurate data, OSHA would be unable to accurately 
determine the nature of workplace problems, would not know 
where to target inspections, and would be unable to evaluate 
the effectiveness of its interventions. Furthermore, the bill 
fails to recognize that there are many other important 
``paperwork'' requirements that significantly and directly 
protect workers from serious injury or illness. Penalties for 
OSHA violations concerning written lockout/tagout programs, 
process hazard analysis at chemical plants, hearing 
conservation and toxics exposure monitoring records all would 
be reduced by the bill.
    According to the majority report, ``the legislation 
eliminates penalties for posting or paperwork requirements.'' 
This is thoughtless overkill. OSHA will not be able to enforce 
effectively the requirement to keep injury and illness logs, 
which occupational safety and health professions consider one 
of the most valuable tools available. OSHA will be unable to 
enforce effectively the requirement to have material safety 
data sheets for extremely hazardous substances including 
carcinogens and neurotoxins. For these reasons, the VPPPA 
employer association did not support this provision of S. 1423, 
stating instead that it ``support[s] OSHA's authority to issue 
first instance citations for all violations.'' (Emphasis 
added.) \9\
---------------------------------------------------------------------------
    \9\ Statement of VPPPA at 128.
---------------------------------------------------------------------------
            Consideration of mitigating factors
    S. 1423 would expand the statutory list of factors to be 
considered in the assessment of penalties, adding such factors 
as whether the employer abated the hazard after the inspection, 
whether the violations involved paperwork requirements, whether 
employee misconduct contributed to the violation, and whether 
the penalty might affect the employer's ability to remain in 
business.
    None of the four proposed factors would improve the act, 
but only the last, which would require the agency to consider 
the effect of the penalty on the employer's ability to stay in 
business, poses serious problems. In practice, many of the most 
negligent companies are those operating on the margins; they 
are looking for any means of cutting costs to gain a 
competitive advantage, and worker protections are often 
sacrificed. For example, Imperial Foods of Hamlet, North 
Carolina cut costs by not installing a sprinkler system and by 
not maintaining its fryer fuel lines. The company saved money, 
but twenty-five workers paid with their lives when a flash fire 
started on the fryer line. Under S. 1423, OSHA might be 
precluded from assessing significant penalties against similar 
employers operating on the margins by endangering their 
workers.
    The Occupational Safety and Health Act provides OSHA great 
discretion in assessing proposed penalties and has not resulted 
in excessive penalties. Indeed, the current average federal 
OSHA penalty for a serious violation (where there is a 
substantial probability that death or serious harm could 
result) is only $753, though the law permits of a maximum 
penalty of $7,000. There is no need for changes in the law that 
would further reduce penalty assessments and the incentive they 
provide for compliance.

Minimum penalty reductions (25 percent to 75 percent)

    The existing OSH Act sets maximum penalties, and one 
minimum penalty for willful violations, and requires OSHA to 
consider an employer's size, good faith, and history, and the 
gravity of the violations, in assessing penalties. This 
statutory scheme allows the agency to establish particular 
penalty policies administratively and implement such policies 
on a case-by-case basis. In contrast, section 8 of S. 1423 
would establish mandatory minimum penalty reductions, limiting 
OSHA's discretion to set policies, modify them as experience 
dictates, and apply them on a case-by-case basis, considering 
all relevant facts and circumstances. Notably, the VPPPA 
employer association concluded that penalty reductions should 
be developed administratively by OSHA: ``This will allow OSHA 
to develop the most efficient method of rewarding these good 
faith employers while maintaining its ability to amend the 
program when necessary.''
    S. 1423 would reduce penalties by a minimum of 25 percent 
if the worksite has either an ``exemplary'' safety record or a 
safety and health program (a minimum of 50 percent if it has 
both). The definition of ``exemplary'' would include hundreds 
of thousands of employers whose records are not exemplary at 
all. These employers could qualify for major penalty reductions 
even where they have ignored serious, widespread hazards; even 
where the employer has committed willful, repeat and failure to 
abate violations, and even where workers have been killed, 
seriously injured, or permanently disabled by occupational 
disease.
    In addition, stating penalty reductions in terms of an 
automatic ``minimum'' reduction leaves the agency without 
enough discretion to weigh countervailing factors. An employer 
with a truly effective safety and health program should receive 
a penalty reduction, and under current practice, OSHA would 
grant one. But what about an employer that merely, as section 8 
provides, ``maintains a safety and health program''? Nothing in 
section 8 requires the program to be effective in order to 
entitle the employer to the minimum penalty reduction of 25 
percent. An employer with a written safety and health program 
could have 15 or 20 willful and repeat violations that resulted 
in the death of employees, but this provision would require 
OSHA to reduce the penalty. S. 1423 denies the agency 
discretion and guarantees absurd and unjust results.
    Another provision would reduce penalties by a minimum of 75 
percent if the worksite has received a consultation visit or 
third-party audit within the preceding year and the employer 
has abated any identified hazards within a reasonable period of 
time. In addition to the concerns about minimum penalty 
reductions we mentioned above, and our concern regarding third-
party certification, this provision would grant a substantial 
penalty reduction even for consultation visits with very 
limited scope. Thus, the 75 percent reduction would still apply 
to willful violations that fell outside the scope of a 
consultation visit, third-party audit or self audit.
    In addition, the bill would allow a 75 percent reduction 
even where the employer has a substantial history of safety and 
health violations and workplace injuries. Employers would also 
remain eligible for these reductions even if the hazards in 
question arose after the consultation visit or audit, and even 
if they allowed safety and health conditions to deteriorate 
after initially complying with a consultant's recommendations.

Section 9. Consultation programs

    Section 9 would codify the consultation services currently 
funded by OSHA under section 7(c)(1) of the OSH Act. As a 
general matter, OSHA supports the codification of current 
consultation programs.
    The requirement for at least 15 percent of total OSHA 
appropriations to be spent on education, consultation, and 
outreach efforts would probably not require any adjustments in 
OSHA programs. Nevertheless, it may be unwise to tie the 
agency's consultation efforts to a specific percentage of 
appropriations. In future years, OSHA's appropriation may 
increase or decrease, and the appropriate mix of consultation 
and enforcement might shift as well.

Section 10. VPP programs

    Section 10 would codify the existing Voluntary Protection 
Program. Notably, OSHA testified in support of the codification 
of this current excellence recognition program.
    OSHA's VPP program has traditionally been reserved for 
employers that have demonstrated the highest commitment to 
worker safety and health. Unfortunately, this provision of S. 
1423 does not define this primary characteristic of VPP. Nor 
would the bill require VPP participants to provide meaningful 
employee involvement in safety and health. Ideally, any 
codification of this program should limit participation to 
employers that have truly superior safety and health records, 
but should allow OSHA the flexibility to define (and modify as 
necessary) the specific criteria for participation in the 
program.
    This section would also authorize OSHA to charge an annual 
fee to VPP participants; the fees would not be available to 
support administration of the VPP, but would be deposited in 
the general treasury of the United States. If fees are to be 
charged for participation, they should be applied to support 
the program. They should not be treated as a tax.
    Section 10 would also require OSHA to establish cooperative 
agreements to encourage the establishment of comprehensive 
safety and health management systems. A substantial body of 
evidence has established that such systems can dramatically 
reduce injury and illness rates. For example, VPP participants 
are required to establish comprehensive safety and health 
programs and such participants have injury and illness rates 60 
percent below their industry averages.
    Although the VPP program will undoubtedly retain the 
enthusiastic support of Congress even without codification, we 
support an amendment that would authorize the program 
statutorily and that would accurately codify the program's 
current requirements.

                         Democratic Amendments

  simon amendment extending osha coverage to federal, state and local 
                               employees

    By a vote of 9-7, the committee accepted Senator Simon's 
amendment extending OSHA coverage to Federal, State and local 
government employees. This change in the OSH Act is long 
overdue. Over 1,700 public employees die each year on the job, 
and almost half a million more suffer disability.
    Federal employees in particular lack protection from unsafe 
work environments. Federal employees are excluded from coverage 
by OSHA, and, although Executive Order 12196 requires OSHA to 
conduct annual inspections of Federal workplaces, OSHA has no 
authority to issue citations or impose penalties upon non-
complying agencies. As a result, the protection of 
approximately 3.2 million Federal employees remains at the 
discretion of their employers.
    Altogether, approximately 7.3 million public employees in 
27 States have no health and safety protection from Federal 
law. These employees have no whistleblower protection, or right 
to request an OSHA inspection. On the other hand, only 23 
States have enacted their own safety and health plans as 
suggested by the OSH Act.
    A study conducted by Ruttenberg and Associates found that 
providing public sector workers with OSHA coverage could save 
the nation between $600 million and $2.1 billion a year. The 
study found that Philadelphia alone could save $7.6 million 
from the reduction of workdays lost to injuries; $2.9 million 
in service-related disability costs; and $480,000 in medical 
costs payable by the city.
    By voting to apply OSHA to public employees, the committee 
took an important step towards ensuring that all Americans 
receive adequate protection against workplace injury and 
disease.

                  Federal Contract Debarment Amendment

    During its February 28, 1996 Executive Session, the 
committee voted to accept Senator Simon's amendment providing 
for Federal contract debarment for repeat OSHA violators. When 
the Executive Session continued on March 5, 1996, the Chairman 
moved for reconsideration, and the Simon Amendment was rejected 
on a party-line vote. The amendment would have allowed the 
Secretary of Labor to debar from Federal contracts firms that 
showed a clear pattern or practice of serious OSHA violations.
    The Federal government already enforces a number of 
statutes and executive orders that hold Federal contractors to 
high standards. For example, the Davis-Bacon Act requires 
Federal construction contractors to pay their workers the 
``prevailing wage'' in their locality, and Executive Order 
11246 requires Federal contractors to establish affirmative 
action policies in their workplaces. Yet there is no statute or 
executive order in place to require that Federal contractors 
serve as a model for other employers in assuring their 
employees a safe and healthful workplace.
    On the other hand, a number of studies have shown that the 
Federal Government is currently paying millions of contract 
dollars per year to companies that have demonstrated a clear 
pattern and practice of exposing their employees to hazardous 
and even life-threatening working conditions.
    Senator Simon's amendment, the Federal Contractor Safety 
and Health Enforcement Act of 1996, was designed to address 
this problem. It would have given the Secretary of Labor the 
discretion to debar firms that show a ``clear pattern and 
practice'' of OSHA violations creating a ``substantial 
probability of death or serious physical harm'' from receiving 
Federal contracts or extensions or modifications of Federal 
contracts for three years.
    The Simon Amendment would also have given the Secretary 
discretion to reduce or remove a debarment order for a firm 
that demonstrates that it has complied with the rules that were 
found to have been violated, that there has been a bona fide 
change of ownership, or that there has been fraud or 
misrepresentation by a charging party.
    Under the amendment, the Secretary would have been allowed 
to define ``pattern and practice'' through the administrative 
rulemaking process. The Amendment would also have left to the 
Secretary rulemaking discretion to determine the circumstances 
under which a parent company should be debarred because of the 
actions of a subsidiary.
    The Simon Amendment would have helped to ensure that 
employers who repeatedly disregard the health and safety of 
their workers face serious economic consequences for their 
failure to abide by the law. It also would have promoted 
efficient and economical Federal procurement by removing 
Federal support for firms that unfairly underbid their 
competitors by skimping on health and safety for their workers.

                          Construction Safety

    Although the Occupational Safety and Health Act originally 
made a pledge to protect America's workers, S. 1423 fails to 
adequately safeguard our workers and, in fact, weakens OSHA. It 
most specifically fails the construction industry, which has 
one of the most disturbing injury records. According to the 
most recent figures available to the Occupational Safety and 
Health Administration, there were 127,000 deaths in the 
construction industry during 1994. Although construction 
workers comprise only 6 percent of the workforce, they account 
for 16 percent of all workplace fatalities. The injury rate for 
construction workers is also higher than the national average, 
resulting in more lost work days for construction workers than 
workers in any other industry.
    In past Congresses, the committee, led by Senator Dodd, has 
looked closely into this issue. The committee held hearings on 
one of the worst workplace accidents in OSHA's history--the 
collapse of the L'Ambiance Plaza construction project which 
killed 28 workers in 1987. It became clear that the 
construction industry presented unique challenges to providing 
a safe workplace. Specifically, construction is characterized 
by changing conditions and multiple employers working on one 
site with uncoordinated or nonexistent safety plans. OSHA, with 
its focus on single employers, is simply unable to fully 
address these unique problems.
    In an effort to deal with this problem, Senator Dodd 
offered an amendment to S. 1423 which provided specific 
protections for construction workers by requiring internal 
cooperation between contractors on each site to assure safer 
working conditions and by establishing an Office of 
Construction Safety and Health within the Occupational Safety 
and Health Administration. Specifically, the amendment required 
every construction project to create a coordinated safety and 
health plan. To assure a safer worksite, plans would include a 
hazard analysis, an appropriate construction process protocol, 
and a method to respond to a request for an inspection of a 
potentially imminent danger.
    These provisions would have significantly improved the 
safety conditions on construction sites. The internal 
coordination of safety plans within a work site would have 
enabled OSHA to spend more time preventing accidents. By 
rejecting this amendment, without offering any alternative of 
their own, the majority members of the Committee have indicated 
that they place no special priority on the safety of our 
nation's construction workers.

                               Conclusion

    S. 1423 would be a major step backward in the nation's long 
struggle to improve workplace safety and health. The bill's 
fundamental premise--that we can improve the performance of 
employers by making it less likely that they will be punished 
for violating the law and endangering their employees--is 
wrong. It is hard to imagine that the majority would support 
this kind of approach with respect to any other activity that 
endangers human life. The recent experience with ValuJet 
Airlines, for example, would lead no one to conclude that 
airline safety would be improved if we lessened the penalties 
for unsafe airplane maintenance. No one seriously suggests that 
we would improve drug safety by reducing the penalties for 
companies caught producing unsafe drugs. Yet the majority's 
prescription for workplace safety seems to boil down to the 
following: ``Reduce the likelihood of catching companies that 
violate the law, and when you do catch them, let them off with 
a slap on the wrist.''
    No matter how much the majority tries, it cannot make this 
ill-conceived approach to ``reform'' resemble the Clinton 
Administration's OSHA Reinvention initiative. The 
Administration can speak for itself, and its veto message on S. 
1423 speaks eloquently.
    But someone must speak for the victims of unsafe 
workplaces, and no one does that better than Mr. Ron Hayes, who 
testified before the committee about the death of his son, 
Patrick, who was killed by a grossly negligent employer. In the 
section of this report headlined ``Enforcement,'' the majority 
quotes Mr. Hayes, perhaps to create the impression that Mr. 
Hayes supports this misguided legislation. In fact, Mr. Hayes 
is an ardent opponent of S. 1423. In a letter to Chairman 
Kassebaum, dated February 15, 1996, Mr. Hayes wrote:

          I know you truly believe what you are proposing will 
        help deregulate some of our government's grip on us, 
        but in reality, in this instance, I think we will be 
        hurt more.
          I think you know, I have had many problems with OSHA 
        and I will be the first to say, we need changes within 
        the agency, but I can't let the changes devastate the 
        millions of workers that need strong enforcement from 
        this agency. I do believe that accountability and some 
        hard changes would make this agency better, but to 
        completely tie the hands of this already weak agency is 
        not the answer.

    Like Mr. Hayes, we oppose S. 1423 and urge our colleagues 
to take a different approach to OSHA reform. Every day, 17 
Americans die from work injuries and 137 die from occupational 
lung diseases, occupational cancers, and other work-related 
illnesses. Every week, 67,000 workers are disabled by work 
injuries and illnesses. Most of these injuries and illnesses 
are preventable.
    We should support legislation only if it enhances the 
safety and protection of the millions of men and women who get 
up and go to work every day. S. 1423 does not.

                                   Edward M. Kennedy.
                                   Christopher J. Dodd.
                                   Tom Harkin.
                                   Paul Wellstone.
                                   Claiborne Pell.
                                   Paul Simon.
                                   Barbara A. Mikulski.
                       X. Changes in Existing Law

    In compliance with rule XXVI paragraph 12 of the Standing 
Rules of the Senate, the following provides a print of the 
Statute or the part of section thereof to be amended or 
replaced (existing law proposed to be omitted is enclosed in 
black brackets, new matter is printed in italic, existing law 
in which no change is proposed is shown in roman):
          * * * * * * *

       OCCUPATIONAL SAFETY AND HEALTH REFORM AND REINVENTION ACT

          * * * * * * *

                      TITLE 29, UNITED STATES CODE

          * * * * * * *
    Sec. 653. (c) In order to carry out the purpose of this Act 
to encourage employers and employees in their efforts to reduce 
the number of occupational safety and health hazards, an 
employee participation program--
          (1) in which employees participate;
          (2) which exists for the purpose, in whole or in 
        part, of dealing with employees concerning safe and 
        healthful working conditions; and
          (3) which does not have, claim, or seek authority to 
        negotiate or enter into collective bargaining 
        agreements with the employer or to amend existing 
        collective bargaining agreements between the employer 
        and any labor organization, 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). Nothing in this section 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. 657. [(g)] (h) * * *
          * * * * * * *
    (g)(1) Except as provided in paragraph (2), the Secretary 
shall not conduct routine inspections of, or enforce any 
standard, rule, regulation, or order under this Act with 
respect to--
          (A) any person who is engaged in a farming operation 
        that does not maintain a temporary labor camp and that 
        employs 10 or fewer employees; or
          (B) any employer of not more than 10 employees if 
        such employer is included within a category of 
        employers having an occupational injury or a lost 
        workday case rate (determined under the Standard 
        Industrial Classification Code for which such data are 
        published) that is less than the national average rate 
        as most recently published by the Secretary acting 
        through the Bureau of Labor Statistics under section 
        24.
    (2) In the case of persons who are not engaged in farming 
operations, paragraph (1) shall not be construed to prevent the 
Secretary from--
          (A) providing consultations, technical assistance, 
        and educational and training services and conducting 
        surveys and studies under this Act;
          (B) conducting inspections or investigations in 
        response to complaints of employees, issuing citations 
        for violations of this Act found during such 
        inspections, and assessing a penalty for violations 
        that are not corrected within a reasonable abatement 
        period;
          (C) taking any action authorized by this Act with 
        respect to imminent dangers;
          (D) taking any action authorized by this Act with 
        respect to a report of an employment accident that is 
        fatal to at least one employee or that results in the 
        hospitalization of at least three employees, and taking 
        any action pursuant to an investigation conducted with 
        respect to such report; and
          (E) taking any action authorized by this Act with 
        respect to complaints of discrimination against 
        employees for exercising their rights under this Act.
          * * * * * * *
    [(f) Request for inspection by employees or representative 
of employees; grounds; procedure; determination of request; 
notification of Secretary or representative prior to or during 
any inspection of violations; procedure for review of refusal 
by representative of Secretary to issue citation for alleged 
violations.
          [(1) Any employees or representative of employees who 
        believe that a violation of a safety or health standard 
        exists that threatens physical harm, or that an 
        imminent danger exists, may request an inspection by 
        giving notice to the Secretary or his authorized 
        representative of such violation or danger. Any such 
        notice shall be reduced to writing, shall set forth 
        with reasonable particularity the grounds for the 
        notice, and shall be signed by the employees or 
        representative of employees, and a copy shall be 
        provided the employer or his agent no later than at the 
        time of inspection, except that, upon the request of 
        the person giving such notice, his name and the names 
        of individual employees referred to therein shall not 
        appear in such copy or on any record published, 
        released, or made available pursuant to subsection (g) 
        of this section. If upon receipt of such notification 
        the Secretary determines there are reasonable grounds 
        to believe that such violation or danger exists, he 
        shall make a special inspection in accordance with the 
        provisions of this section as soon as practicable, to 
        determine if such violation or danger exists. If the 
        Secretary determines there are no reasonable grounds to 
        believe that a violation or danger exists he shall 
        notify the employees or representative of the employees 
        in writing of such determination.
          [(2) Prior to or during any inspection of a 
        workplace, any employees or representative of employees 
        employed in such workplace may notify the Secretary or 
        any representative of the Secretary responsible for 
        conducting the inspection, in writing, of any violation 
        of this Act which they have reason to believe exists in 
        such workplace. The Secretary shall, by regulation, 
        establish procedures for informal review of any refusal 
        by a representative of the Secretary to issue a 
        citation with respect to any such alleged violation and 
        shall furnish the employees or representatives of 
        employees requesting such review a written statement of 
        the reasons for the Secretary's final disposition of 
        the case.]
    (f)(1)(A) An employee or representative of an employee who 
believes that a violation of a safety or health standard exists 
that threatens physical harm, or that an imminent danger 
exists, may request an inspection by providing notice of the 
violation or danger to the Secretary or an authorized 
representative of the Secretary.
    (B) Notice under subparagraph (A) shall be reduced to 
writing, shall set forth with reasonable particularity the 
grounds for the notice, and shall state whether the alleged 
violation or danger 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 or danger.
    (C)(i) The notice under subparagraph (A) shall be signed by 
the employees or representative of employees and a copy shall 
be provided to the employer or the agent of the employer not 
later than the time of arrival of an occupational safety and 
health agency inspector to conduct the inspection.
    (ii) Upon the request of the person providing the notice 
under subparagraph (A), the name of the person and the names of 
individual employees referred to in the notice shall not appear 
in the copy of the notice or on any record published, released, 
or made available pursuant to subsection (i), except that the 
Secretary may disclose this information during prehearing 
discovery in a contested case.
    (D) The secretary may only make an inspection under this 
section if such an inspection is requested by an employee or a 
representative of employees.
    (E)(i) If, upon receipt of the notice under subparagraph 
(A), the Secretary determines that there are reasonable grounds 
to believe the violation or danger exists, the Secretary may 
conduct a special inspection in accordance with this section as 
soon as practicable. Except as provided in clause (ii), the 
special inspection shall be conducted for the limited purpose 
of determining whether the violation or danger exists.
    (ii) During a special inspection described in clause (i), 
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.
    (2) If the Secretary determines either before, or as a 
result of, an inspection that there are not reasonable grounds 
to believe a violation or danger exists, the secretary shall 
notify the complaining employee or employee representative of 
the determination and, upon request by the employee or employee 
representative, shall provide a written statement of the 
reasons for the Secretary's final disposition of the case.
    (3) The Secretary or an authorized representative of the 
Secretary may, as a method of instigating an alleged violation 
or danger under this section, 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 a special 
inspection under this subsection if the Secretary determines 
that a request for a special 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. 8A. HEALTH AND SAFETY REINVENTION INITIATIVES.

    (a) In General.--The Secretary shall establish a program to 
encourage voluntary employer and employee efforts to provide 
safe and healthful working conditions.
    (b) Exemption.--In establishing a program under subsection 
(a), the Secretary shall, in accordance with subsection (c), 
provide an exemption from all safety and health inspections and 
investigations for a place of employment maintained by an 
employer participating in such program, except that this 
subsection shall not apply to inspections and investigations 
conducted for the purpose of--
          (1) determining the cause of a workplace accident 
        that resulted in the death of one or more employees or 
        the hospitalization of three or more employees; or
          (2) responding to a request for an inspection 
        pursuant to section 8(f)(1).
    (c) Exemption Requirements.--To qualify for an exemption 
under subsection (b), an employer shall provide to the 
Secretary evidence that, with respect to the employer--
          (1) during the preceding year, the place of 
        employment or conditions of employment have been 
        reviewed or inspected under--
                  (A) a consultation program provided by 
                recipients of grants under section 7(c)(1) or 
                23(g);
                  (B) a certification or consultation program 
                provided by an insurance carrier or other 
                private business entity pursuant to a State 
                program, law, or regulation if the person 
                conducting the review or inspection meets 
                standards established by, and is certified by, 
                the Secretary; or
                  (C) a workplace consultation program provided 
                by a qualified person certified by the 
                Secretary for purposes of providing such 
                consultations,
that includes a means of ensuring that serious hazards 
identified in the consultation are corrected within an 
appropriate time and that, where applicable, permits an 
employee (of the employer) who is a representative of a health 
and safety employee participation program to accompany a 
consultant during a workplace inspection; or
          (2) the place of employment has an exemplary safety 
        and health record and the employer maintains a safety 
        and health program for the workplace that includes--
                  (A) procedures for assessing hazards to the 
                employer's employees that are inherent to the 
                employer's operations or business;
                  (B) procedures for correcting or controlling 
                such hazards in a timely manner based upon the 
                severity of the hazard; and
                  (C) an employee participation program that, 
                at a minimum--
                          (i) includes regular consultation 
                        between the employer and nonsupervisory 
                        employees regarding safety and health 
                        issues;
                          (ii) includes the opportunity for 
                        nonsupervisory employees to make 
                        recommendations regarding hazards in 
                        the workplace and to receive responses 
                        or to implement improvements in 
                        response to such recommendations; and
                          (iii) ensures that participating 
                        nonsupervisory employees have training 
                        or expertise on safety and health 
                        issues consistent with the 
                        responsibilities of such employees.
      (d) Model Program.--The Secretary shall publish and make 
available to employers a model safety and health program that 
if completed by the employer shall be considered to meet the 
requirements for an exemption under this section.
      (e) Certification.--The Secretary may require that, to 
claim the exemption under subsection (b), an employer provide 
certification to the Secretary and notice to the employer's 
employees of such eligibility. The Secretary may conduct random 
audits of the records of employers to ensure against 
falsification of the records by the employers.
      (f) Records.--Records of a safety and health inspection, 
audit, or review that is conducted by an employer and that is 
not conducted under a program described in subsection (a) shall 
not be required to be disclosed to the Secretary unless--
          (1) the Secretary is conducting an investigation 
        involving a fatality or a serious injury of an employee 
        of such employer; or
          (2) such employer has not taken measures to address 
        serious hazards in the workplace of the employer 
        identified during such inspection, audit, or review.
          * * * * * * *
    Sec. 652. * * *
          * * * * * * *
          (15) The term ``exemplary safety and health record'' 
        means such record as the Secretary shall annually 
        determine for each industry. Such record shall include 
        employers that have had, in the most recent reporting 
        period, no employee death caused by occupational injury 
        and fewer lost workdays due to occupational injury and 
        illness than the average for the industry of which the 
        employer is a part.
          * * * * * * *
    Sec. 658. (d) No citation may be issued under subsection 
(a) to an employer unless the employer knew, or with the 
exercise of reasonable diligence would have known, of the 
presence of the alleged violation. No citation shall be issued 
under subsection (a) to an employer for an alleged violation of 
section 5, any standard, rule, or order promulgated pursuant to 
section 6, any other regulation promulgated under this Act, or 
any other occupational safety and health standard, if such 
employer demonstrates that--
          (1) employees of such employer have been provided 
        with the proper training and equipment to prevent such 
        a violation;
          (2) work rules designed to prevent such a violation 
        have been established and adequately communicated to 
        employees by such employer and the employer has taken 
        reasonable measures to discipline employees when 
        violations of such work rules have been discovered;
          (3) the failure of employees to observe work rules 
        led to the violation; and
          (4) reasonable steps have been taken by such employer 
        to discover any such violation.
    (e) A citation issued under subsection (a) to an employer 
who violates the requirements of section 5, of 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 employees of such employer were 
protected by alternative methods equally or more protective of 
he employee's safety and health than those required by such 
standard, rule, order, or regulation in the factual 
circumstances underlying the citation.
    (f) Subsections (d) and (e) shall not be construed to 
eliminate or modify other defenses that may exist to any 
citation.
    (g) The Secretary shall not establish any quota for any 
subordinate within the Occupational Safety and Health 
Administration (including any regional director, area director, 
supervisor, or inspector) with respect to the number of 
inspections conducted, citations issued, or penalties 
collected.
          * * * * * * *
    Sec. 658. [(a) Authority to issue; grounds; contents; 
notice in lieu of citation for de minimis violations.
    [If, upon inspection or investigation, the Secretary or his 
authorized representative believes that an employer has 
violated a requirement of section 5 of this Act, of any 
standard, rule or order promulgated pursuant to section 6 of 
this Act, or of any regulations prescribed pursuant to this 
Act, he shall with reasonable promptness issue a citation to 
the employer. Each citation shall be in writing and shall 
describe with particularity the nature of the violation, 
including a reference to the provision of the Act, standard, 
rule, regulation, or order alleged to have been violated. In 
addition, the citation shall fix a reasonable time for the 
abatement of the violation. The Secretary may prescribe 
procedures for the issuance of a notice in lieu of a citation 
with respect to de minimis violations which have no direct or 
immediate relationship to safety or health.]
    (a)(1) Except as provided in paragraph (2), if, upon 
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 the 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.
    (2) 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 repeat violation.
    (3) 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.
          * * * * * * *
    Sec. 666(c) Citation for violation determined not serious. 
Any employer who has received a citation for a violation of the 
requirements of section 5 of this Act, of any standard, rule, 
or order promulgated pursuant to section 6 of this Act, or of 
regulations prescribed pursuant to this Act, and such violation 
is specifically determined not to be of a serious nature, may 
be assessed a civil penalty [up to $7,000] not more than $100 
for each such violation.
          * * * * * * *
    [[(h)](i) Violation of posting requirement. Any employer 
who violates any of the posting requirements, as prescribed 
under the provisions of this Act shall be assessed a civil 
penalty of up to $7,000 for each violation.]
    [[(i)](j) Authority of Commission to assess civil 
penalties. The Commission shall have authority to assess all 
civil penalties provided in this section, giving due 
consideration to the appropriateness of the penalty with 
respect to the size of the business of the employer being 
charged, the gravity of the violation, the good faith of the 
employer, and the history of previous violations.]
    (i) Any employer who violates any of the posting or 
paperwork requirements other than serious or fraudulent 
reporting requirement deficiencies, prescribed under this Act 
shall not be assessed a civil penalty for such violation unless 
it is determined that the employer has violated subsection (a) 
or (d) with respect to such posting or paperwork requirements.
    (j)(1) The Commission shall have authority to assess all 
civil penalties under this section. In assessing a penalty 
under this section, the Commission shall give due consideration 
to the appropriateness of the penalty with respect to--
          (A) the size of the employer;
          (B) the number of employees exposed to the violation;
          (C) the likely severity of any injuries directly 
        resulting from such violation;
          (D) the probability that the violation could result 
        in injury or illness;
          (E) the employer's good faith in correcting the 
        violation after the violation has been identified;
          (F) the extent to which employee misconduct was 
        responsible for the violation;
          (G) the effect of the penalty on the employer's 
        ability to stay in business;
          (H) the history of previous violations; and
          (I) whether the violation is the sole result of the 
        failure 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.
    (2)(A) A penalty assessed under this section shall be 
reduced by at least 25 percent in any case in which the 
employer--
          (i) maintains a safety and health program described 
        in section 8A(a) of the worksite at which the violation 
        (for which the penalty was assessed) took place; or
          (ii) demonstrates that the worksite at which the 
        violation (for which the penalty was assessed) took 
        place has an exemplary safety record.
If the employer maintains a program described in clause (i) and 
has the record described in clause (ii), the penalty shall be 
reduced by at least 50 percent.
    (B) A penalty assessed against an employer for a violation 
other than a violation that--
          (i) has been previously cited by the Secretary;
          (ii) creates an imminent danger;
          (iii) has caused death; or
          (iv) has caused a serious incident,
shall be reduced by at least 75 percent if the worksite at 
which such violation occurred has been reviewed or inspected 
under a program described in section 8A(c)(1) during the 1-year 
period before the date of the citation for such violation, and 
such employer has complied with recommendations to bring such 
employer into compliance within a reasonable period of time.
          * * * * * * *
    Sec. 670 [(c) The] (c)1 The Secretary, in consultation with 
the Secretary of Health, Education, and Welfare, shall [(1) 
provide] (A) provide for the establishment and supervision of 
programs for the education and training of employers and 
employees in the recognition, avoidance, and prevention of 
unsafe or unhealthful working conditions in employments covered 
by this Act, and [(2) consult] (B) consult with and advise 
employers and employees, and organizations representing 
employers and employees as to effective means of preventing 
occupational injuries and illnesses.
    (2)(A) The Secretary shall, through the authority granted 
under section 7(c) and paragraph (1), enter into cooperative 
agreements with States for the provision of consultation 
services by such States to employers concerning the provision 
of safe and healthful working conditions. A State that has a 
plan approved under section 18 shall be eligible to enter into 
a cooperative agreement under this paragraph only if such plan 
does not include provisions for federally funded consultation 
to employers.
    (B)(i) Except as provided in clause (ii), the Secretary 
shall reimburse a State that enters into a cooperative 
agreement under subparagraph (A) in an amount that equals 90 
percent of the costs incurred by the State under such 
agreement.
          (ii) A State shall be fully reimbursed by the 
        Secretary for--
                  (I) training approved by the Secretary for 
                State staff operating under a cooperative 
                agreement; and
                  (II) specified out-of-State travel expenses 
                incurred by such staff.
          (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 the clause 
        (ii).
    (C) Notwithstanding any other provision of law, at least 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.
          * * * * * * *