[Senate Report 105-159]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 300
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-159
_______________________________________________________________________


 
              SAFETY ADVANCEMENT FOR EMPLOYEES ACT OF 1997

                                _______
                                

                January 27, 1998.--Ordered to be printed

_______________________________________________________________________


    Mr. Jeffords, 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. 1237]

    The Committee on Labor and Human Resources, to which was 
referred the bill (S. 1237) to amend the Occupational Safety 
and Health Act of 1970 to further improve the safety and health 
of working environments, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill as amended do pass.


                                CONTENTS

                                                                   Page
  I. Purpose of legislation...........................................2
 II. The need for legislation.........................................3
III. Legislative history and committee action........................15
 IV. Explanation of the bill and committee views.....................18
  V. Cost estimate...................................................28
 VI. Application of law to the legislative branch....................31
VII. Regulatory impact statement.....................................32
VIII.Section-by-section analysis.....................................32

 IX. Minority views of Senators Kennedy, Dodd, Harkin, Mikulski, 
     Bingaman, Wellstone, Murray and Reed............................35
  X. Additional views of Senator Bingaman............................56
 XI. Changes in existing law.........................................59

                       I. Purpose of Legislation

    The Occupational Safety and Health Act (OSH Act) of 1970 
paved the way for the creation of the Occupational Safety and 
Health Administration (OSHA) within the U.S. Department of 
Labor. The 1970 act charged OSHA with ensuring safe and 
healthful working conditions for all workers ``by encouraging 
employers and employees in their efforts to reduce the number 
of occupational safety and health hazards at their places of 
employment.'' \1\ Since its creation, critics have bitterly 
debated whether OSHA has met its statutory mandate.
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    \1\ Occupational Safety and Health Act, 29 U.S.C. 651(b)(1)(1970).
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    OSHA has consistently relied upon an adversarial approach 
rather than placing a greater emphasis on a collaborative 
strategy geared toward increasing worker safety and health. The 
committee believes that the agency's approach has failed 
American workers because it falls short of effectively 
addressing safety problems or helping employers in their 
compliance efforts. Even while OSHA admits that ``95 percent of 
the employers in the country do their level best to try to 
voluntarily comply'' with the law, the agency still treats 
those employers as adversaries--issuing them citations for what 
they haven't done rather than assisting them in complying with 
regulations to make the workplace safer.\2\ The result of this 
approach has been an unproductive enforcement climate which is 
ineffective and frustrating for both employers and workers, as 
it fosters poor communication and little cooperation between 
OSHA and the business and labor communities.
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    \2\ See Ellen Byerrum, ``Decline in Inspection Numbers Prompts 
Renewed Enforcement Emphasis, Says OSHA,'' BNA, February 26, 1997, No. 
38 at A-8.
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    Critics have claimed that OSHA has operated since its 
conception as a reactionary regulator--inspecting worksites 
primarily after a fatality or injury has occurred. While it is 
important that OSHA retain its ability to enforce the law and 
respond to employee complaints in a timely fashion, it is 
apparent that the agency can maintain those objectives and 
still broaden preventative initiatives so that fewer workplace 
fatalities and injuries occur. The committee is convinced that 
OSHA is primarily geared to address workplace safety and health 
after injuries and fatalities have occurred and urges OSHA to 
place a greater emphasis on being a preventative regulator.
    The Safety Advancement for Employees Act of SAFE Act, S. 
1237, is structured to increase the joint cooperation of 
employers, employees, and OSHA in the effort to improve safe 
and healthful working conditions for employees. By 
strengthening and expanding voluntary and cooperative 
compliance initiatives currently available to employers while 
preserving OSHA's enforcement responsibilities, the objectives 
prescribed by Congress when it wrote the act in 1970 will 
finally be achieved.
    The SAFE Act reflects a new approach to worker safety that 
is centered on cooperation. This important legislation has been 
crafted to promote and enhance workplace safety and health--
rather than dismantle it. The SAFE Act would not waive any of 
OSHA's power to inspect workplaces, but it would recognize that 
employers who actively seek expert assistance to improve safety 
should not be treated as adversaries. The committee believes 
that the spirit of cooperation must overpower political 
polarization if true improvements in occupational safetyand 
health are to be achieved. By encouraging employers to seek 
individualized compliance assistance from OSHA qualified third party 
consultants, the SAFE Act would ensure that more American workplaces 
are in compliance with the law while allowing OSHA to concentrate its 
enforcement resources on those worksites that truly need its immediate 
attention. Simply put, the SAFE Act would result in increased 
compliance by employers resulting in greater safety for workers.

                      II. The Need for Legislation

                    Ineffective Adversarial Approach

    Committee members recognize that most employers want to 
improve worker safety and comply with OSHA regulations.\3\ It 
is apparent that a growing number of employers need compliance 
assistance and timely information. The threat of fines has 
little impact on bad actors, because they will continue to play 
the odds of not being inspected. As a result, OSHA's 
adversarial model neither assists nor deters effectively. OSHA 
has consistently neglected the compliance needs of the good 
faith employer and has failed to adequately police the existing 
minority of those employers who ignore OSHA's regulations. The 
result is an ineffective adversarial approach that doesn't 
achieve its mandate of creating safer workplaces--leaving the 
worker to face the consequences.
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    \3\ See Ellen Byerrum, supra note 2, at A-8, quoting OSHA Deputy 
Assistant Secretary Frank Strasheim. ``95 percent of the employers in 
the country do their level best to try to voluntarily comply with OSHA.
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    There is little, if any, conclusive evidence that OSHA's 
adversarial approach has actually improved worker safety. After 
numerous attempts, the committee failed to locate a 
comprehensive study that proves that OSHA's 25 year presence is 
responsible for the steady decline in the number of workplace 
injuries and fatalities. In fact, prior to the creation of 
OSHA, the total number of disabling injuries in the United 
States between 1942 and 1970 actually declined by 3 percent 
despite a rapidly growing workplace.\4\ Factoring in this same 
expansion in the American workplace, the injury rate declined 
by 45 percent.\5\ Since the passage of the OSH Act of 1970, 
however, the total number of workdays lost because of 
injuries--a measure of injury severity--has significantly 
increased.\6\ In fact, the average number of lost workdays per 
100 full-time workers actually rose from 54.6 in 1974 to 76.1 
in 1988.\7\ Such statistical inconsistencies prompted the 
General Accounting Office (GAO) to conclude that ``OSHA's 
impact on injury and illness is largely unknown.'' \8\
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    \4\ See Max Lyons, ``OSHA: The Case for Reform,'' Employment Policy 
Foundation (1995), at 5-6.
    \5\ Ibid.
    \6\ U.S. General Accounting Office, ``Options for Improving Safety 
and Health in the Workplace,'' Washington, D.C., 1990 at 15.
    \7\ Ibid.
    \8\ Ibid.
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    The committee also recognizes that the total number of 
inspections throughout the United States fell from 42,377 in 
1994 to 24,024 in 1996 and the number of OSHA's citations 
dropped 62 percent from 145,900 to 55,100 during that same 
time.\9\ It is logical to conclude that the federal government 
shutdown and agency budget cuts were contributing factors to 
this decline. Despite this occurrence, however, work-related 
injuries and illnesses dropped to their lowest rate in nearly a 
decade during that same period.\10\
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    \9\ Ann Scott, ``A kinder, gentler, OSHA?'' Bus. Rec., Des Moines, 
April 7, 1997, at 10.
    \10\ ``On-Job Injuries, Illnesses Drop In 1995 to Lowest Level in 
Decade,'' Daily Labor Report, BNA, March 13, 1997, No. 49 at D-1.
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                 inability to regulate every workplace

    OSHA is an agency plagued by its inability to regulate 
every American workplace. OSHA only has 2,451 state and federal 
inspectors to regulate 96.7 million workers in 6.2 million 
worksites.\11\ The AFL-CIO has recognized that under current 
conditions, it would take OSHA 167 years to visit every 
workplace under its jurisdiction.\12\ In addition to this 
monumental time lapse, the sheer diversity of safety and health 
concerns stemming from restaurants to funeral homes, prohibits 
an inspector from fully comprehending each individual worker's 
needs and concerns.
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    \11\ Letter from OSHA Acting Assistant Secretary of Labor, Gregory 
Watchman, to Rep. James Talent, Chairman, U.S. House of Representatives 
Small Business Committee, August 15, 1997, at 4.
    \12\ AFL-CIO, Death on the Job: The Toll of Neglect (April 1997) (A 
State-by-State Profile of Worker Safety and Health in the United 
States, 6th Edition) at 3.
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    Even more revealing is the fact that in 1994 and early 
1995, three quarters of worksites in the United States that 
were the scene of serious accidents had never been inspected by 
OSHA during this decade.\13\ Those accidents claimed the lives 
of 1,835 workers and injured thousands more.\14\ OSHA officials 
acknowledge that their inspectors do not investigate most 
lethal worksites until after accidents occur.\15\ Yet, despite 
such a profound disparity, OSHA requested an additional 110 
inspectors for fiscal 1998 so that the agency ``can respond 
quickly to any reports of injury or death that occur.'' \16\ 
Such inconsistencies lead committee members to conclude that 
the agency defines its success by its failures, and that 
philosophy is jeopardizing the lives of American workers.
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    \13\ The Associated Press, ``OSHA Failed to Inspect Majority of 
Workplaces Where Workers Died in `94,'' Asheville Citizen Times, 
September 5, 1995, at 1-A.
    \14\ Ibid.
    \15\ Ibid.
    \16\ See Ellen Byerrum, supra note 2 at A-8.
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                           Regulatory Morass

    Time spent by businesses addressing safety and health in 
the work-place should be dedicated to abating hazards, not 
sifting through and trying to understand hundreds of pages of 
regulations. Witnesses have testified that the volume of OSHA 
regulations that employers are expected to read, understand, 
and implement is staggering. Many of OSHA's regulations are so 
vague that to expect a small business employer to correctly 
interpret them is practically inconceivable. As a result, 
employers are left to fend for themselves, spending a 
significant portion of their time and money misinterpreting 
regulations and making safety improvements that are either not 
required by law or not related to workplace safety, or both.
    In a GAO Report entitled, ``Inspectors' Opinions on 
Improving OSHA's Effectiveness,'' the following conclusion was 
drawn:

          Most inspectors think that lack of knowledge of 
        legislation, regulation, and standards among both 
        employers and workers contributes to a ``great'' or 
        ``very great'' extent to workplace injuries and 
        illnesses as well as health and safety violations.\17\
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    \17\ U.S. General Accounting Office, ``Inspectors' Opinion on 
Improving OSHA's Effectiveness,'' Washington, DC 1990, at 34.

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    And as one inspector remarked:

          Too many employers, employees and compliance 
        personnel are left guessing as to what they judge to 
        be, or assume to be, correct and complying with the 
        standard.\18\
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    \18\ Id. at 29.

    The committee recognizes the difficulties that confront 
employers when trying to comply with the overwhelming number of 
complex regulations prescribed by OSHA. An employer's ability 
to comprehend what he or she is required to do by law will only 
occur if OSHA ``improve[s] communication with business and 
labor, including making information more accessible, and 
enhance[s] cooperation with employers and workers throughout 
the regulatory process.'' \19\
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    \19\ OSHA: Potential to Reform Regulatory Enforcement Efforts: 
Hearing before the Subcommittee on Human Resources and 
Intergovernmental Relations of the House Committee on Government Reform 
and Oversight,'' 103rd Cong., 1st Sess., 1995, (statement of Cornelia 
M. Blanchette, Associate Director, U.S. General Accounting Office) at 
99.
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    OSHA, in an attempt to counter the criticism of regulatory 
morass, points to the wide variety of informational resources 
and programs to help employers. OSHA promotes its more than 80 
different publications, safety and health standards in CD-ROM 
format (available for purchase), its presence on the world wide 
web, its safety and health courses, and its consultation 
programs.\20\ In fact, OSHA has remarked that it believes that 
``determining which standards apply to a particular worksite 
can be done easily (by regulated business) through a process of 
elimination.'' \21\ GAO has rejected this claim, noting that 
the ``dizzying array of brochures, toll-free numbers, and other 
methods to inform businesses of their regulatory requirements'' 
does not go far enough towards alleviating the vast 
communication problem in the regulatory arena.\22\
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    \20\ ``Regulatory Burden: Measurement Challenges and Concerns 
Raised by Selected Companies,'' U.S. General Accounting Office, 
Washington, DC, 1996, at 33-34.
    \21\ Id. at 32 n.2 (emphasis added).
    \22\ Id. at 81.
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    A 1996 GAO report entitled ``Regulatory Burden: Measurement 
Challenges and Concerns Raised by Selected Companies,'' \23\ 
reviewed the cumulative impact of Federal regulations, 
including those promulgated by OSHA, on a limited number of 
businesses. Fifteen geographically dispersed companies 
voluntarily chose to participate in the review. The report's 
theme revolved around one of GAO's initial requests: GAO asked 
each of the businesses to supply an aggregate list of 
regulations with which the company must comply. While the 
responses to the requests varied, the overall result was the 
same; not one of the 15 participating businesses was able to 
determine every regulation that applied to their business. GAO 
concluded that employers were left in the dark when it comes to 
regulatory compliance, stating that:
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    \23\ See supra note 20.
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          Companies do not seem to have enough information 
        about their regulatory responsibilities, and they may 
        be reluctant to seek that information from regulatory 
        agencies. Agencies, on the other hand, have an array of 
        information about their regulatory requirements; 
        however, they do not appear to be getting the 
        information to companies in such a way that the 
        companies understand what regulations are applicable to 
        them and how to comply with those regulations.\24\
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    \24\ Id. at 73.

    Compliance-seeking employers who strive to achieve 
regulatory compliance continuously encounter monumental 
obstacles. As described by an official employed by one of the 
participating companies, the overwhelming range of regulatory 
requirements is akin to ``getting pecked to death by ducks--
each bite may not hurt, but all together they are very 
painful.'' \25\ The sheer volume of regulations was cited by 
both government and business as one of the most burdensome 
elements of Federal regulatory compliance.\26\ Moreover, 
participating businesses did not understand certain regulatory 
requirements because they were vague or complex, and as a 
result, the companies were unsure whether and how the 
regulation applied to them.\27\ They cited ``confusing, 
ambiguous, or conflicting terminology used in the regulations 
themselves or on the required forms.\28\
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    \25\ Id. at 27.
    \26\ Ibid.
    \27\ Id. at 63.
    \28\ Ibid.
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    Businesses noted that they do not understand some 
regulatory requirements because of frequent changes to the 
regulations, thereby making it difficult to stay current and to 
know what was required of them in order to be in 
compliance.\29\ Dramatically compounding this compliance 
problem is the fact that employers are left feeling stranded 
without helpful assistance. Businesses were not able to get the 
clarifications they needed from agency staff.\30\ Among one of 
the most widespread concerns of the participating businesses 
was that regulators lacked knowledge of the particular business 
and provided little assistance so they could comply with the 
regulations.\31\
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    \29\ Id. at 64.
    \30\ Id. at 63.
    \31\ Id at 58-59.
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    Committee members have expressed deep concern that the GAO 
cited so many misinterpretations of regulations by businesses. 
In one instance, officials from a participating business said 
that OSHA lead exposure standards required that even routing 
maintenance workers put on personal protective equipment and be 
``fit tested''--a process the business said was extremely 
expensive. When the GAO questioned OSHA about the requirement, 
OSHA said that the regulations cited did not apply to the type 
of routine maintanence activities the business described.\32\ 
In another instance, business officials said that OSHA's 
guarding provisions for their machinery was very expensive, and 
that retrofitting their existing machines would cost between 
$225,000 and $300,000 per machine. But when OSHA was asked 
about this compliance measure, officials replied that ``it is 
unclear why this company would need to retrofit existing 
equipment to meet safety and health standards.* * * '' \33\
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    \32\ Id. at 80.
    \33\ Id. at 100-101.
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                         Saddling of Paperwork

    The GAO cited paperwork as a cause of frequent 
miscommunication and wasted resources. Fourteen of 15 
businesses participating in the GAO study complained that 
paperwork or other procedural requirements were excessive, 
while the agencies said that in several of those cases, the 
businesses had misinterpreted the paperwork requirements and 
therefore were incurring unnecessary expenses.\34\ In one 
instance, a participating business explained how OSHA required 
them to retain certain employee safety training records 
``forever,'' while OSHA said that no such employee safety 
training records were required and, therefore, no retention 
requirement existed.\35\
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    \34\ Id. at 65-66.
    \35\ Id. at 66.
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    By far, the largest number of citations issued to employers 
by OSHA are for paperwork violations.\36\ In 1994, the top six 
(and 11 of the top 20) of the most-cited violations involved 
paperwork deficiencies.\37\ As OSHA continues to channel its 
resources toward paperwork, serious safety concerns go 
uninspected. In fact, even OSHA officials acknowledge that 
their inspectors ``do not get to a lion's share of the lethal 
sites until after accidents occur.'' \38\ The end result is 
that incompetent, reckless employers go undetected while good 
faith employers spend additional time and money on paperwork 
rather than safety.
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    \36\ ``OSHA '97: Tackling the Tough Issues,'' BNA, January 15, 
1997, at 1173.
    \37\ ``Oversight of the Occupational Safety and Health 
Administration: Hearing before the Senate Subcommittee on Public Health 
and Safety of the Senate Labor and Human Resources Committee,'' 
105th Cong., 1st Sess., 1997 (testimony of F.M. 
Lunnie Jr., Executive Director of COSH) at 94.
    \38\ The Associated Press, supra note 13 at 1A.
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    The committee has concluded that workplace safety and 
health suffer when the employer's resources are tied up with 
paperwork that even OSHA acknowledges as being unnecessary. Nor 
is the safety and health of workers benefitted when OSHA fines 
employers who are making a good faith effort to comply with all 
the existing regulations. The committee heard testimony that 
small businesses, in particular, are concerned ``that 
overzealous OSHA inspectors, determined to meet monthly 
citation quotas, were citing them for minor paperwork 
violations and other inconsequential actions that posed little 
or no threat to workers.'' \39\
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    \39\ Lunnie testimony supra note 37 at 94.
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                    inadequate compliance assistance

    Vice President Gore helped pour the foundation for a new 
cooperative approach by harnessing the expertise of private 
sector OSH Act compliance experts to consult employers on how 
to achieve greater workplace safety. Acknowledging that OSHA 
``doesn't work well enough,'' because there are ``only enough 
inspectors to visit even the most hazardous workplace once 
every several years,'' \40\ the Vice President has called on 
OSHA to rely on private consultation companies in its effort to 
ensure the safety and health of American workers.\41\ In this 
way:
---------------------------------------------------------------------------
    \40\ Albert Gore, ``From Rept. pg. ---- loss; The Gore Report on 
Reinventing Government,'' 1993, at 62.
    \41\ Ibid.

          [OSHA] would use the same basic technique the federal 
        government uses to force companies to keep honest 
        financial books: setting standards and requiring 
        periodic certification of the books by expert financial 
        auditors. No army of Federal auditors descends upon 
        American businesses to audit their books; the 
        government forces them to have the job done themselves. 
        In the same way, no army of OSHA inspectors need 
        descend upon corporate America.\42\ 
---------------------------------------------------------------------------
    \42\ Ibid.

OSHA must understand and embrace the concept that employers who 
hire and pay for the expertise of a OHSA qualified, 
professional, third party consultant are by definition, 
cooperating with the agency. Fining such employers for their 
good faith compliance efforts does not constitute a similar 
spirit of cooperation and, in fact, poses a disincentive to 
voluntarily undertaken compliance. By promoting cooperation 
with employers through the use of private sector compliance 
auditors, the ``health and safety of American workers could be 
vastly improved.\43\
---------------------------------------------------------------------------
    \43\ Ibid.
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    In its effort to adhere to Vice President Gore's 
initiatives, however, OHSA has failed to go beyond rhetoric. 
Current voluntary and cooperative compliance programs impact a 
mere fraction of worksites and consume only a small share of 
the agency's annual budget.\44\ Despite OHSA's claim that it is 
``putting a lot of resources into compliance assistance and 
partnership initiatives,'' \45\ only 22 percent of OHSA's 1997 
fiscal appropriation was spent on federal and state plan state 
compliance assistance.\46\ It is difficult for anyone to say 
that current initiatives are having an impact on the number of 
workplace fatalities and injuries when OHSA spends so little of 
its annual funds on preventive measures.
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    \44\ The Voluntary Protection Program, OHSA's partnership program, 
includes approximately 400 participant companies.
    \45\ ``Oversight of the Occupational Safety and Health 
Administration: Hearing before the Senate Subcommittee on Public Health 
and Safety of the Senate Labor and Human Resources Committee,'' 105th 
Cong., 1st Sess., 1997, (testimony of Gregory Watchman, OHSA Acting 
Assistant Secretary of Labor), at 28.
    \46\ H. Rep. No. 659, 104th Cong., 2nd Sess. (1996).
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    It is truly unfortunate that good faith compliance efforts 
fail to score an employer any points whatsoever by OHSA. 
Businesses have begged OHSA to stop policing them and to start 
working to help them understand how to achieve better worker 
safety.\47\ In fact, over half of the businesses in the GAO 
Report cited incidents in which regulators evidenced a 
``gotcha'' manner or were ``more interested in finding 
companies in noncompliance with regulatory requirements than 
helping companies comply with the regulations.'' \48\ One 
company official remarked that:
---------------------------------------------------------------------------
    \47\ ``Regulatory Burden,'' supra note 20 at 117-119.
    \48\ Id. at 67.
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          OHSA's policy of immediately imposing fines for 
        violations places an emphasis on finding violations to 
        justify enforcement actions, rather than on working 
        with the company to encourage compliance. [The company 
        official] said that many OHSA inspectors focus on 
        finding something wrong because citing violations 
        demonstrates what OHSA views as good job 
        performance.\49\

    \49\ Id. at 117.
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    To bring a greater number of American workplaces into 
compliance, OHSA's ineffective adversarial approach must be 
modified to reflect increased cooperation. The committee 
recognizes that the agency's current approach pits the employer 
against the inspector--fostering distrust and suspicion. This 
environment does not encourage employers and employees to work 
together with OHSA to provide safe and healthful working 
conditions as prescribed by the OHS Act of 1970. Both the 
government and the private sector devote vast resources to 
trying to discover employers in violation of regulations as 
part of an effort that few believe will advance worker safety 
and health. In its current form, however, the agency is 
incapable of handling the safety problems of millions of 
individual workplaces as America races toward the 21st Century. 
As recognized by Vice President Gore, OHSA's system ``doesn't 
work well enough.'' \50\
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    \50\ ``Reinventing Government,'' supra note 40 at 62.
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                          cooperative approach

    To successfully adopt a new approach, significant changes 
in the relationship the exists between employers and OSHA must 
be made. It is not productive to threaten employers with fines 
noncompliance when millions of safety conscious employers don't 
know how they are supposed to comply. Nor is it effective to 
burden employers with more compliance materials than they can 
possibly digest or understand. To achieve the new, cooperative 
approach, the vast majority of employers who are concerned 
about worker safety and health must have compliance assistance 
programs made more accessible to them. Creating true 
partnerships between businesses and OSHA will ultimately 
empower the honest employers to improve worker safety, while 
allowing OSHA to concentrate its enforcement on the small 
number of employers who constitute the ``bad actors.''
    The committee believes that fostering partnerships between 
employers and OSHA is the key element in constructing and 
effectively implementing a cooperative approach. The committee 
heard testimony illustrating that ``job and health is 
everyone's responsibility and that all parties can contribute 
to making it happen. Ultimately, however, workplace protection 
is the product of cooperative efforts between employers and 
their employees. In it is an essential component of effective 
employee relations and constitutes good business practice. It 
is an important responsibility that business take seriously and 
to which substantial resources are devoted.'' \51\ In addition, 
the committee recognizes that all OSHA compliance officers must 
fully understand every regulation and guideline implemented and 
administered by OSHA. OSHA personnel must be able to 
demonstrate a comprehensive understanding of the law if they 
are to expect employers to do the same.
---------------------------------------------------------------------------
    \51\ Lunnie testimony, supra note 37, at 93.
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    Several cooperative approach concepts that effectively 
address workplace safety and health are outlined in the Clinton 
administration's report entitle, ``The New OSHA.'' \52\ The 
Administration described OSHA as being driven ``too often by 
numbers and rules, and not by smart enforcement and results. 
Many people see OSHA as an agency so enmeshed in its own red 
tape that it has lost sight of its own mission.'' \53\ Such 
criticisms echoes GAO's testimony before the House of 
Representatives Education and Labor Committee:
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    \52\ ``The New OSHA: Reinventing Worker Safety and Health,'' 
National Performance Review, May 1995, 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, at 63.
    \53\ Id. at 2.

          The most fundamental weakness of OSHA's oversight 
        process continues to be its lack of information about 
        the out comes and effectiveness of both its own program 
        and state programs * * * [I]t basically focuses on 
        program activity measures, as on number of inspections 
        conducted, without emphasizing program outcome 
        measures, such as reduction workplace injuries, as 
        well.\54\
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    \54\ ``Changes Needed in the Combined Federal-State Approach to 
Occupational Safety and Health: Hearing Before the Subcommittee on 
Labor Standards of the House Committee on Education and Labor,'' 
101st Sess., 1993 (Statement of Clarence C. Crawford, 
Associate Director, U.S. General Accounting Office) at 5.

    The safest workplaces will be achieved through effective 
communication and cooperation--where employees are encouraged 
to ask for help from experts who can not only identify 
occupational hazards, but who can also provide guidance on how 
they may be remedied as well. OSHA should not have a monopoly 
on compliance assistance--particularly when it has been unable 
to effectively fulfill its promise to ensure safer workplaces 
by enforcement

                       third party consultations

    The committee has found that one of the most effective 
means of communicating the importance of cooperative compliance 
assistance to employers would be to use individuals qualified 
in the safety and health field--the certified industrial 
hygienist, the safety engineer, the professional engineer, the 
occupational nurse, and the physician. Acting in the capacity 
of third party consultants for decades, these qualified 
individuals have been effectively interpreting complex OSHA 
regulations for employers who do not have the expertise to do 
it for themselves--thereby advancing OSHA's goal of increased 
employer compliance.
    Businesses choose to make their workplaces safe because 
caring for workers is simply good business. Pressures of the 
market to lower costs, retain skilled workers, minimize legal 
and insurance costs, and avoid bad publicity have driven 
employers to make workplaces safer.\55\ It is clear that 
employers are committed to the concept of voluntarily improving 
worker safety--a clear sign of cooperation. In many instances, 
however, they simply need additional assistance in 
understanding where problems exist and how remedies can be 
achieved.
---------------------------------------------------------------------------
    \55\ John Hood, OSHA's Trivial Pursuit, Policy Review (Summer 1995 
Edition) (unpublished work on file at The Heritage Foundation) at 61.
---------------------------------------------------------------------------
    Employers may not understand the sheer volume of OSHA 
regulations that govern safety and health, but they do know 
their own workplace. By broadening existing cooperative 
compliance initiatives, employers can identify and respond more 
promptly to safety and health problems at their worksites. Vice 
President Gore has publically stated that third party auditing 
is the path to greater worker safety. In his 1993 Report on 
Reinventing Government, the Vice President concluded that 
employers should be encouraged by OSHA to use third party 
auditors as a way to vastly improve the health and safety of 
American workers ``without bankrupting the Federal treasury.'' 
\56\ Such a cooperative approach would ``ensure that all 
workplaces are regularly inspected, without hiring thousands of 
new employees.'' \57\ By establishing incentives designed to 
encourage workplaces to comply, ``[w]orksites with good health, 
safety, and compliance records would be allowed to report less 
frequently to the Labor Department, to undergo fewer audits, 
and to submit less paperwork.'' \58\ In the meantime, OSHA 
could ``impose higher fines for employers whose health and 
safety records worsened or did not improve.'' \59\
---------------------------------------------------------------------------
    \56\ ``Reinventing Government'', supra note 40 at 62.
    \57\ Ibid.
    \58\ Id. at 63.
    \59\ Ibid.
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    Following Vice President Gore's lead, OSHA has gone so far 
as to recommend to employers seeking help from a state plan 
state OSHA consultation service that in the event of a backlog, 
the employer ``may be able to obtain similar services from 
[its] insurance carrier or private consultant in a more timely 
fashion.'' \60\ GAO also has concluded that an important way 
for OSHA to ``stretch the existing inspection workforce'' would 
be to allow ``consultations by OSHA-certified private sector 
safety and health specialists as substitutes for targeted 
inspections.'' \61\ Such a suggestion far exceeds any third 
party consultation proposal being currently debated by 
Congress.
---------------------------------------------------------------------------
    \60\ ``Occupational Safety and Health Reform and Reinvention Act, 
Hearing on S. 1423: Before the Senate Committee on Labor and Human 
Resources,'' 104th Cong., 1st Sess., S. Hrg. 104-353, 1995 (memorandum 
from John B. Miles, Jr., Director, Directorate of Compliance Programs, 
and Nelson Reyneri, Director, Office of Reinvention, to OSHA Regional 
Administrators, May 2, 1995).
    \61\ ``Improving Safety and Health,'' supra note 6 at 35.
---------------------------------------------------------------------------
    Safety professionals have become experienced at 
understanding OSHA's requirements and implementing individual 
solutions that fit workplaces as diverse as manufacturing 
plants, funeral homes and retail stores.\62\ Perhaps one of the 
most notable benefits provided by third party consultants is 
that they are not limited to conducting compliance inspections 
(as OSHA inspectors are), but can also target other safety 
problems that exist in each work environment. And because each 
worksite is unique, employer-specific solutions will be more 
effective at truly meeting the needs of workers.
---------------------------------------------------------------------------
    \62\ See American Board of Industrial Hygiene certification 
handbook, p. 7-12, also see Board of Certified Safety Professionals, 
Certified Safety Professional Candidate Handbook, May 1997, p. 3-5.
---------------------------------------------------------------------------
    Third party consultants are also able to fill another vital 
niche that is closed to OSHA inspectors; aiding those employers 
who are reluctant to communicate their compliance problems with 
OSHA personnel for fear of being fined. Such fear can, in fact, 
have a chilling effect on workplace safety and health, because 
employers who don't feel safe in seeking the answers they need 
are often unable to solve workplace safety problems. 
Accordingly, the neutral third party consultant is best able to 
make successful strides towards achieving better safety and 
health for workers, because businesses will not hesitate to 
supply them with all the facts.
    The committee has concluded that OSHA needs to pay more 
attention to the small number of employers who are unconcerned 
about safety and health. These employers should be inspected, 
fined and forced into compliance. But when a safety-conscious 
employer has the desire to protect workers, a cooperative 
approach should be applied. GAO made the following 
recommendation with regard to opportunities for improvement at 
OSHA:

          With a ratio of one inspector to 3,000 worksites, 
        OSHA and the states must find ways to extend their 
        resources and impact far beyond the limited number of 
        worksites they can directly inspect. OSHA and the 
        states need to encourage employers to voluntarily 
        identify and correct occupational safety and health 
        hazards without an OSHA directed inspection.\63\
---------------------------------------------------------------------------
    \63\ ``Changes Needed in the Combined Federal-State Approach to 
Occupational Safety and Health: Hearing before the Subcommittee on 
Labor Standards of the House Committee on Education and Labor,'' 101st 
Cong., 1st Sess., 1993 (statement of Clarence C. Crawford, Associate 
Dir., U.S. General Accounting Office) at 11.

    It is clear that workers and businesses need clarification 
on a whole host of issues. America needs good common sense 
legislation that advances safety and health in the American 
workplace. This is a matter of great importance and it must be 
considered in a serious and rational manner by Congress, by the 
Occupational Safety and Health Administration, by employers, 
and of course, by employees, too.

                              the safe act

    The SAFE Act addresses these issues by sticking to a 
theme--the advancement of safety and health in the workplace. 
The bill's theme was primarily derived from the thoughts, 
suggestions and good ideas of employees, employee 
representatives, employers and certified safety and health 
professionals prior to the bill's initial draft. The committee 
understands past concerns regarding OSHA's ability to meet its 
responsibilities as an enforcement agency, as well as the 
importance of maintaining an employee's right to an inspection. 
The committee listened carefully to these concerns and as a 
result, the SAFE Act has been crafted to promote and enhance 
workplace safety and health--rather than dismantle it.
    The spirit of cooperation must overpower polarization if 
true improvements in occupational safety and health are to be 
achieved. It is essential that stereotypical rhetoric be set 
aside with the understanding that an overwhelming majority of 
employers cherish their most valuable assets--their employees. 
The committee believes that without the employee, management 
will ultimately have no production, no profits, and no 
business. It is logical to surmise that by promoting 
cooperation, good business will ultimately prevail.
    When the Occupational Safety and Health Act was enacted 27 
years ago, it was intended to make the workplace free from 
recognized hazards that are causing, or likely to cause death 
or serious physical harm to employees.\64\ The committee has 
found that OSHA has strayed too far from its original mission 
of protecting people from occupational safety and health 
hazards. The focus has instead been placed on heavily weighted 
penalties and enforcement. Although OSHA would retain its 
ability to punish employers who don't embrace workplace safety 
and health, the SAFE Act would encourage OSHA to reward those 
who do primarily by expanding cooperative and voluntary 
compliance initiatives. As previously noted, enforcement alone 
cannot ensure safe workplaces and the health of our working 
population. Thus, workers would be better served by an OSHA 
that places an equal emphasis on both its cooperative 
compliance initiatives and its enforcement responsibilities.
---------------------------------------------------------------------------
    \64\ Occupational Safety and Health Act, 29 U.S.C. 651(b)(1)(1970).
---------------------------------------------------------------------------
    The SAFE Act would promote cooperation, as well as 
communication, by encouraging employers to implement employee/
employer participation programs that are centered on addressing 
occupational safety and health hazards. These programs would 
help encourage employees and employers to discuss, identify and 
correct occupational safety and health hazards in their 
respective worksites. The committee has concluded that 
participation programs require flexibility and that effective 
cooperation can never be mandated. In addition, it is important 
that such programs not be confused with Senate bill 295, the 
Teamwork for Employees and Management Act (TEAM Act). The TEAM 
Act's employee and employer involvement committees would cover 
issues of quality, productivity and efficiency as well as 
safety and health. Safety and health participation programs as 
prescribed by the SAFE Act complements what the Clinton 
administration had in mind when it stated that ``employer 
commitment and meaningful employee participation and 
involvement in safety and health is a key ingredient in 
effective programs.'' \65\
---------------------------------------------------------------------------
    \65\ ``The New OSHA'', supra note 52, at A-1.
---------------------------------------------------------------------------
    The SAFE Act would promote voluntary compliance by allowing 
employers to hire third party consultants to assist them in the 
identification and correction of safety and health hazards. 
Studies have shown that many sites where serious workplace 
accidents have occurred were not inspected by federal OSHA 
inspectors for several years prior to the accident. This lack 
of attention to potential problem areas is due in part to an 
overemphasis on enforcement. Since only 2,400 inspectors from 
OSHA and approved state programs are tasked with ensuring the 
safety and health of 93 million workers and 6.2 million 
worksites, Vice President Gore has called on OSHA to rely on 
private consultation companies in its effort to ensure the 
safety and health of American workers.\66\ It is clear that by 
injecting third party consultative services into the mix, the 
availability of technical assistance to employers who 
voluntarily seek to make their workplace safer for their 
employees will dramatically increase.
---------------------------------------------------------------------------
    \66\ ``Reinventing Government'', supra note 40 at 62.
---------------------------------------------------------------------------
    The SAFE Act would help ensure that all federal 
occupational safety and health standards are based on sound, 
scientific data. By injecting independent scientific peer 
review into the rulemaking process, future regulations will 
reflect greater clarity and simplicity--helping businesses to 
better understand what they are required to do. It is the 
committee's hope that the addition of an independent scientific 
peer review will ultimately speed up the implementation process 
for OSHA's rules. Under the present system, draft rules can 
idle in this process for several years. At the same time, 
annual funding continues to be channeled toward research at the 
expense of the taxpayer. By incorporating independent 
scientific peer review in the rule-making process, the 
promulgation period for new rules will likely be shortened over 
time without compromising the integrity, validity or need for 
regulation.
    OSHA personnel performing inspections and consultations 
must have a detailedknowledge of and expertise in the 
respective industry they are inspecting. OSHA personnel currently are 
not required to be certified in a safety and health profession. The 
SAFE Act would require that certain OSHA personnel receive continuing 
education and professional certification to ensure that the rapid 
advancement of technology does not surpass OSHA's ability to identify 
occupational safety and health hazards in the workplace. These 
personnel are responsible for the safety and health of America's 
workers. It is essential that their skills reflect proper training and 
education in their respective professional fields prior to entering and 
inspecting a worksite. In doing so, the communication between OSHA and 
employers as well as the safety and health of employees will be 
enhanced.
    The committee recognizes OSHA's limited resources and 
believes that federal law should provide the agency with 
greater discretion in handling formal complaints by codifying 
OSHA's phone/fax policy. Under current law, OSHA is required to 
respond to every formal, written complaint with an onsite 
inspection.\67\ By statutorily providing OSHA with the ability 
to use a phone or fax machine to see if an employer has taken 
corrective action, the agency will more effectively identify 
which worksites need immediate attention.
---------------------------------------------------------------------------
    \67\ Occupational Safety and Health Act, 29 U.S.C. 651(b)(1)(1970).
---------------------------------------------------------------------------
    The committee acknowledges the volume of paperwork that 
employers--small and large--are mandated to understand and 
prepare. It is practically inconceivable to expect employers to 
read and remember hundreds of pages of technical language. Such 
mandates are a deterrent for individuals considering starting 
their own business. The SAFE Act would waive civil penalties 
for posting or paperwork requirements except when an employer 
willfully or repeatedly violates this mandate. This change 
would refocus OSHA inspections on the most serious hazards, 
while allowing employers to expend resources on the elimination 
of hazards.
    The SAFE Act would promote cooperation among employees, 
too, by placing additional emphasis on the importance of 
wearing personal protective equipment. The committee has 
concluded that employees have the ultimate control as to 
whether they wear their steel-toed shoes, hard hats or safety 
goggles. The SAFE Act would allow OSHA the discretion of 
issuing citations to employees who refuse to wear their 
personal protective gear. Employees also must contribute to the 
advancement of workplace safety, not only for their personal 
protection, but for those working around them as well.
    To expand cooperative initiatives currently provided by 
OSHA to employers, the SAFE Act would codify OSHA's state plan 
program. After listening to small businesses from states with 
safety and health plans, the committee recognizes that 
employers sometimes face a lengthy waiting period after 
requesting a free consultation. Meanwhile, the employer is left 
vulnerable to routine OSHA inspections and fines and employees 
are potentially subject to hazards--despite the employer's good 
faith effort to request compliance assistance. To help address 
potential backlogs, the SAFE Act would establish a ``pilot'' 
program to provide expedited consultation services to small 
business employers who generally cannot afford a third party 
consultation service.
    The availability of voluntary compliance initiatives would 
be further expanded for employers. The SAFE Act would codify 
OSHA's 15 year-old Voluntary Protection Programs (VPP) to 
further establish cooperative agreements that encourage 
comprehensive safety and health management systems including 
requirements for the systematic assessment of hazards; 
comprehensive hazard prevention, mitigation, and control 
programs; and, active and meaningful management and employee 
participation in the VPP. Currently, OSHA has approximately 400 
participants nationwide in the VPP. The SAFE Act would help 
increase that number by encouraging more small businesses to 
participate by providing additional outreach and assistance 
initiatives and developing program requirements that meet their 
unique needs.
    Overall, the SAFE Act constitutes an important first step 
to passing rational and sensible legislation. Rather than 
dismantling OSHA's enforcement responsibilities or eliminating 
agencies and programs within the Administration, the SAFE Act 
clearly focuses on expanding employer/employee participation, 
consultative compliance services, individual responsibility, 
and voluntary compliance initiative as well. This legislation 
represents a fresh start to the establishment of a cooperative 
approach between OSHA, employers and employees.

             III. Legislative History and Committee Action

    On March 18, 1997, Senator Hutchison, for herself and 
Senators Helms and Inhofe, introduced S. 461, the Occupational 
Safety and Health Reform Act of 1997.
    On April 10, 1997, Senator Gregg introduced S. 551, The 
OSHA Modernization Act of 1997.
    On May 20, 1997 Senator Enzi, for himself and Senators 
Allard, Burns, Craig, Hagel, McConnell, Roberts, Sessions, 
Thomas, and Hutchinson, introduced S. 765, the Safety and 
Health Advancement Act of 1997.
    On July 10, 1997, the Senate Committee on Labor and Human 
Resources held a hearing on oversight of OSHA, OSHA's 
reinvention efforts, and the three bills previously introduced 
(S. Hrg. 105-101). The following individuals provided 
testimony:

The Honorable Judd Gregg (R-N.H.)
The Honorable Kay Bailey Hutchison (R-TX)
The Honorable Mike Enzi (R-WY)
Gregg Watchman, Acting Assistant Secretary, Department of 
        Labor, Washington, DC
Harry Morley, Taylor-Morley Homes, Inc., St. Louis, MO
Jeff W. Johnston, P.E., CSP, Manager of OSHA Resources, Eastman 
        Chemical Company, Kingsport, TN
Michael A. Lail, Raines Brothers Inc., Chattanooga, TN
Eric Frumin, Director of Health and Safety, UNITE, AFL-CIO, NY
F.M. Lunnie, Jr., Coalition for Occupational Safety and Health, 
        Falls Church, VA
Steven Lewis, Ph.D., DABT, American Industrial Health Council, 
        Washington, DC
Nancy Lessin, Massachusetts Coalition for Occupational Safety 
        and Health, Boston, MA

    Additional statements and letters regarding OSHA reform 
were received and placed in the record.
    On September 30, 1997, Senator Enzi, for himself and 
Senators Gregg, Frist, Jeffords, Coats, DeWine, Hutchinson, 
Collins, Warner, McConnell, Allard, Brownback, Burns, Craig. 
Hagel, Nickles, Roberts, Sessions, Smith (OR), and Thomas, 
introduced S. 1237, the Safety Advancement for Employees Act of 
1997.
    On October 22, 1997, the Senate Committee on Labor and 
Human Resources met in Executive Session to consider Senate 
bill 1237, the Safety Advancement for Employees Act. The 
committee voted on the following amendments:
    Senator Enzi offered an amendment in the form of a 
substitute making technical corrections to S. 1237. The 
amendment was accepted by voice vote and was used as the 
underlying vehicle.
    Senator Murray offered an amendment to modify the 
provisions related to employee involvement. The amendment 
failed (7-11) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Jeffords
Dodd                                Coats
Harkin                              Gregg
Mikulski                            Frist
Wellstone                           DeWine
Murray                              Enzi
Reed                                Hutchinson
                                    Collins
                                    Warner
                                    McConnell
                                    Bingaman

    Senator Wellstone offered an amendment providing enhanced 
``whistle blower'' protection and remedies to complainants, 
which failed (8-9) on a rollcall vote:

                                                                                                                
                  YEAS                                  NAYS                                  PASS              
                                                                                                                
Kennedy                               Jeffords                              Collins                             
Dodd                                  Coats                                                                     
Harkin                                Gregg                                                                     
Mikulski                              Frist                                                                     
Bingaman                              DeWine                                                                    
Wellstone                             Enzi                                                                      
Murray                                Hutchinson                                                                
Reed                                  Warner                                                                    
                                      McConnell                                                                 
                                                                                                                

    Senator Dodd offered an amendment establishing an office of 
construction safety within OSHA and mandating that construction 
sites maintain health and safety programs. The amendment failed 
(8-9) on a rollcall vote:

                                                                                                                
                  YEAS                                 NAYS                                 PRESENT             
                                                                                                                
Kennedy                              Jeffords                             Collins                               
Dodd                                 Coats                                                                      
Harkin                               Gregg                                                                      
Mikulski                             Frist                                                                      
Bingaman                             DeWine                                                                     
Wellstone                            Enzi                                                                       
Murray                               Hutchinson                                                                 
Reed                                 Warner                                                                     
                                     McConnell                                                                  
                                                                                                                

    Senator Reed offered an amendment modifying the Third Party 
Audit Program. The amendment failed (8-10) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Jeffords
Dodd                                Coats
Harkin                              Gregg
Mikulski                            Frist
Bingaman                            DeWine
Wellstone                           Enzi
Murray                              Hutchinson
Reed                                Collins
                                    Warner
                                    McConnell

    Senator Reed offered an amendment regarding small farm 
inspections and investigations. The amendment failed (8-10) on 
a rollcall vote:
        YEAS                          NAYS
Kennedy                             Jeffords
Dodd                                Coats
Harkin                              Gregg
Mikulski                            Frist
Bingaman                            DeWine
Wellstone                           Enzi
Murray                              Hutchinson
Reed                                Collins
                                    Warner
                                    McConnell

    Senator Reed offered an amendment relating to criminal 
penalties. The amendment failed (8-10) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Jeffords
Dodd                                Coats
Harkin                              Gregg
Mikulski                            Frist
Bingaman                            DeWine
Wellstone                           Enzi
Murray                              Hutchinson
Reed                                Collins
                                    Warner
                                    McConnell

    The committee then voted (10-8) to report the bill, as 
amended, on a rollcall vote:
        YEAS                          NAYS
Jeffords                            Kennedy
Coats                               Dodd
Gregg                               Harkin
Frist                               Mikulski
DeWine                              Bingaman
Enzi                                Wellstone
Hutchinson                          Murray
Collins                             Reed
Warner
McConnell

            IV. Explanation of the Bill and Committee Views

              employee and employer participation programs

    Employees are an important resource for advancing workplace 
health and safety. In addition, employee involvement is 
critical to workplace safety. Employees on the shop floor know 
where the hazards are and how to fix them. OSHA has begun to 
``promote worker participation in efforts to achieve safe and 
healthful workplaces. Employers have an obvious interest in 
working with their employees to improve safety and health at 
their own establishment.''\68\
---------------------------------------------------------------------------
    \68\ ``The New OSHA,'' supra note 52 at 6.
---------------------------------------------------------------------------
    This section would permit employers to establish employer 
and employee participation programs which exist for the sole 
purpose of addressing safe and healthful working 
conditions.\69\ The committee has found that open discussion of 
safety and health issues has a positive impact on addressing 
potential hazards. This section clearly states that an entity 
created under an employee and employer participation program 
shall not constitute a labor organization or be construed to 
affect employer obligations when dealing with a certified or 
recognized employee representative.
---------------------------------------------------------------------------
    \69\ S. 1237, section 3.
---------------------------------------------------------------------------
    The Administration has stated that ``employer commitment 
and meaningful employee participation and involvement in safety 
and health is a key ingredient in effective programs.''\70\ In 
fact, OSHA's Augusta, Maine, area office issued a guidance 
statement, CPL 2.1A, on its Maine 200 Program encouraging 
employers to establish safety programs that included employee 
involvement.
---------------------------------------------------------------------------
    \70\ ``The New OSHA,'' supra note 52 at A-1.
---------------------------------------------------------------------------

               third party consultation services program

    The Committee recognized Department of Labor concerns that 
additional time may be needed to construct and implement the 
regulations that administer the Third Party Consultation 
Services Program. The Enzi substitute amendment accepted by the 
committee would provide an additional nine months. As a result, 
no later than 3 months after the date of enactment, OSHA must 
establish an advisory committee pursuant to the Federal 
Advisory Committee Act of 1972 (FACA) for the sole purpose of 
advising and making recommendations to the Secretary with 
respect to the establishment and implementation of the third 
party consultation services program.\71\ The advisory committee 
will exist for a period of two years and would be broadly 
represented by 3 employees, 3 employers, 2 members of the 
general public, and 1 member who is a state official from a 
state plan state.\72\ All committee members are required to 
have expertise in workplace safety and health. The advisory 
committee will provide OSHA with valuable comments and 
recommendations from employees, employers, and the general 
public when constructing and implementing the third party 
consultation program--alleviation potential ``conflicts of 
interest.''
---------------------------------------------------------------------------
    \71\ Federal Advisory Committee Act, 5 U.S.C. App. I (1972).
    \72\ S. 1237, section 4.
---------------------------------------------------------------------------
    No later than 18 months after the date of enactment, OSHA 
must establish and implement by regulation a third party 
consultation program that qualifies individuals to provide 
consultation services to employers to assist them in the 
identification and correction of safety and health hazards.\73\ 
Individuals that would be eligible to be qualified by OSHA must 
be: An individual licensed by a state authority as a physician, 
industrial hygienist, professional engineer, safety engineer, 
safety professional, or registered nurse; a state plan state or 
Federal inspector with 5 years experience; an individual 
qualified in an occupational safety or health field by an 
organization whose program is accredited by a nationally 
recognized private accreditation organization or by OSHA; an 
individual with a minimum of 10 years of safety and health 
experience; and, individuals determined to be qualified by 
OSHA.\74\
---------------------------------------------------------------------------
    \73\ S. 1237, section 5.
    \74\ Ibid.
---------------------------------------------------------------------------
    If eligible individuals are qualified by OSHA, they are to 
kept on a registry by the agency allowing them to serve as 
consultants in the third party consultation program and provide 
services in all 50 states, DC and territories. A consultation 
visit would consist of a qualified individual evaluating an 
employer's fixed or non-fixed workplace to identify any 
violations under the OSH Act and provide appropriate corrective 
measures to address any violations found. Through regulations, 
OSHA could determine the type of worksites to be serviced by a 
qualified individual. No later than 30 business days after the 
initial consultation, the qualified individual must provide a 
written report to the employer identifying any violations and 
corrective measures for abatement. No later than 90 days after 
the employer receives the written report or on a date agreed by 
the qualified individual or employer, the qualified individual 
will reinspect the workplace to verify that the corrections 
were made. The committee recognizes that adequate time must be 
provided so a participating employer can order additional 
equipment, for instance, to abate a potential hazard as well as 
ensuring that all consultations and recommendations are not 
hindered by time constraints.
    If the qualified individual determines that identified 
hazards have been abated or that a written abatement plan is in 
order,\75\ a declaration of resolution may be provided to the 
employer--exempting them from civil penalties for a 2 year 
period for that workplace. The employer, however, jeopardizes 
this exemption if a good faith effort has not been made to 
remain in compliance as required under the declaration of 
resolution and/or if there has been a fundamental change in the 
hazards of the workplace. Thereby, if an employee suffers an 
injury or is killed as a result of an employer's failure to 
abide to the declaration of resolution, the employer would be 
liable for a willful violation based on a lack of good faith 
effort to remain in compliance. Moreover, if an employer 
fundamentally changes the hazards of the workplace after 
receiving a declaration of resolution, the two year exemption 
would not apply. Of course, if that occurs. OSHA could issue a 
penalty as prescribed under current law.\76\
---------------------------------------------------------------------------
    \75\ See OSHA Standards, 29 CFR 1903.19(e)(2).
    \76\ Occupational Safety and Health Act, section 17(e), 29 U.S.C. 
666 (1970).
---------------------------------------------------------------------------
    All records related to consultation services in this 
section or records connected with voluntary safety and health 
inspections conducted by or for an employer are not admissible 
in a court of law or administrative/enforcement proceeding 
against the employer except to showevidence of fraud, gross 
negligence, malfeasance or a failure to meet the requirements of the 
program on the part of a qualified individual. If such evidence is 
present, OSHA would have the authority to revoke the qualified 
individual's participation in the program. This section would also not 
prohibit OSHA from inspecting a workplace.
    The committee has concluded that the third party 
consultation services program is an incentive driven safety and 
health program. Employers seeking compliance assistance from an 
OSHA qualified consultant would surpass what is already 
required by Federal occupational safety and health law. The 
third party consultation program would be a program 
constructed, implemented, and administered by OSHA to allow 
employers the option of hiring third party consultants to 
assist them in the identification and correction of safety and 
health hazards. OSHA's inability to inspect hazardous worksites 
is primarily due to only 2,400 Federal and State program 
inspectors ensuring the safety and health of 93 million workers 
and 6.2 million worksites.\77\ By implementing an OSHA third 
party consultation service, the availability of technical 
assistance to employers who voluntarily seek to make their 
workplace safer for their employees will be drastically 
broadened.
---------------------------------------------------------------------------
    \77\ ``Reinventing Government,'' supra note 40 at 62.
---------------------------------------------------------------------------

                   independent scientific peer review

    Prior to issuing a final standard, OSHA would be required 
to submit the draft final standard and a copy of the rule-
making record to the National Academy of Sciences (NAS) for 
review and comments. The NAS will appoint an independent 
scientific review committee to conduct an independent review of 
the final rule and the scientific literature and then make 
written recommendations to OSHA--including the appropriateness 
and adequacy of the scientific data, scientific methodology, 
and scientific conclusions adopted by OSHA. If OSHA decides to 
modify the final rule in response to the recommendations 
provided by the scientific review committee, the committee will 
be given the opportunity to review and comment on the changes 
before the final standard is issued. The NAS recommendations 
will be published with the final rule in the Federal Register.
    The committee agrees with testimony that supports basing 
all safety and health standards on sound science. It is clear 
that most OSHA safety and health standards are burdensome and 
difficult for employers to comply with and understand.\78\ 
Moreover, OSHA's safety and health standards do not have to be 
based on peer-reviewed sound science.\79\ Without such a 
requirement OSHA takes, on average, 10 years to issue a 
standard.\80\ In the meantime, taxpayers dollars continue to 
fund the promulgation of a proposed draft standard.
---------------------------------------------------------------------------
    \78\ ``Oversight of the Occupational Safety and Health 
Administration: Hearing before the Senate Subcommittee on Public Health 
and Safety of the Senate Labor and Human Resources Committee,'' 105th 
Cong., 1st Sess., S. Hrg. 105-101, 1997 (testimony of Mike Lail, 
President of Rains Brothers Inc.) at 84.
    \79\ Ibid.
    \80\ Ibid.
---------------------------------------------------------------------------
    The committee also heard testimony from the American 
Industrial Health Council (AIHC), a body that has dedicated 
over 20 years to advancing the role of peer review as a means 
to assure sound application of science in regulations. The 
council's representative, Dr. Steven Lewis, testified that in 
1995, AIHC undertook a study to evaluate the state of peer 
review practices within the Federal Government.\81\ In fact, 
that study revealed that OSHA is one of several Federal 
regulatory agencies which has not yet implemented a formal 
external scientific peer review process as part of rule-
making.\82\ In addition, the committee recognizes the 1983 NAS 
``Red Book,'' which places strong emphasis on peer review as an 
essential component of the risk assessment process.\83\
---------------------------------------------------------------------------
    \81\ ``Oversight of the Occupational Safety and Health 
Administration: Hearing before the Senate Subcommittee on Public Health 
and Safety of the Senate Labor and Human Resources Committee,'' 105th 
Cong., 1st Sess., S. Hrg. 105-101, 1997 (testimony of Dr. Steven Lewis, 
Chairman of Science Policy Committee of the American Industrial Health 
Council) at 97.
    \82\ Ibid.
    \83\ National Academy of Sciences, ``Risk Assessment in the Federal 
Government: Managing the Process,'' Washington, DC, National Academy 
Press, 1983, at 156-160.
---------------------------------------------------------------------------
    Although this provision prescribes additional review, the 
committee recognizes that the removal of any ``conflict of 
interest'' at OSHA by having an independent review would 
inevitably speed up the process and ensure that all standards 
are based on sound, scientific data. The injection of 
additional scientific review is a positive addition to the 
rule-making process. Such review will help ensure that all 
standards are rational, logical and clear so that employers can 
more easily understand what they are expected to do concerning 
workplace safety and health.\84\
---------------------------------------------------------------------------
    \84\ See also General Electric v. Joiner, No. 96-188 (U.S. Supreme 
Court, Dec. 15, 1997) (Breyer, J., concurring) at 1.
---------------------------------------------------------------------------

    continuing education and professional certification for certain 
        occupational safety and health administration personnel

    The committee has concluded that all OSHA personnel 
performing inspection, consultation and standards promulgation 
functions must have knowledge of safety or health disciplines 
and obtain private sector professional certification within 2 
years of initial hire at OSHA.\85\ In addition, OSHA personnel 
who carry out inspections or consultations under this section 
must also receive ongoing professional education and training 
every 5 years. The committee heard testimony stating that the 
agency does ``not require a specific license'' for a person 
applying for an inspector position.\86\
---------------------------------------------------------------------------
    \85\ S. 1237, section 7.
    \86\ ``Oversight of the Occupational Safety and Health 
Administration: Hearing before the Senate Subcommittee on Public Health 
and Safety of the Senate Labor and Human Resources Committee,'' 105th 
Cong., 1st Sess., 1997, at 29.
---------------------------------------------------------------------------
    Currently, Federal and State plan State inspectors are not 
required to be certified in a safety and health profession. 
There are no specific qualifications necessary in order to 
apply for employment as an inspector. Accepted applicants are 
sent to a training academy for a short period of time prior to 
being placed in the field as an inspector. The SAFE Act would 
require that the Federal employees charged with enforcing the 
OSH Act be capable and qualified. A Federal or State plan State 
inspector needs to exhibit knowledge and expertise in the 
respective industry they are inspecting. The SAFE Act would 
guarantee just that.

                    Inspection Procedures and Quotas

    This section gives OSHA the discretion on whether to 
conduct an onsite inspection if the agency determines that the 
complaint was made for reasons other than health or safety. For 
instance, in circumstances where OSHA determines that a 
complaint was made for fraudulent reasons by a former, 
disgruntled employee or a competitor and OSHA determines that 
the employees are not at risk, then this section would grant 
the agency discretion to determine whether or not to conduct an 
onsite inspection.
    This section would formalize inspection procedures by 
ensuring that all employee complaints state whether the alleged 
violation has been brought to the attention of the employer and 
if so, whether the employer has refused to take any action to 
correct the alleged violation.\87\ The committee recognizes 
that this section preserves employee anonymity, while providing 
OSHA with valuable information for prioritizing which worksites 
need its immediate attention. This section also 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 complained of violation or 
danger exists. This provision further promotes a cooperative 
relationship between the employer and the agency. At the same 
time, the committee does not expect OSHA inspectors to inspect 
with a ``blind eye.'' This section would permit OSHA to take 
``appropriate actions with respect to health and safety 
violations that are not within the scope of the inspections and 
that are observed'' during the course of an inspection.\88\
---------------------------------------------------------------------------
    \87\ S. 1237, section 8.
    \88\ Ibid.
---------------------------------------------------------------------------
    This section would provide OSHA with greater discretion in 
handling formal complaints by codifying the agency's phone/fax 
policy. Under current law, OSHA is compelled to respond to 
every formal, written complaint with an onsite inspection. The 
committee has concluded that codifying OSHA's phone/fax policy 
will not undermine the agency's deterrent effect because its 
use is discretionary. Employers would continue to not receive 
advance warning of an OSHA inspection as prescribed under 
current law. In addition, OSHA would retain its authority to 
conduct an onsite inspection at the outset if the agency 
decides that is appropriate.
    Senate bill 1237 would eliminate OSHA inspector quotas. 
This section would prohibit OSHA 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, but rather work 
to identify potential hazards and assist the employer in 
abating such hazards. OSHA's success must depend upon whether 
the nation's workforce is safer and healthier, and not upon 
meeting or surpassing numerical goals for inspections, 
citations, or penalties. In addition, this section would 
require OSHA to report annually on the number of employers that 
are inspected and determined to be in compliance with the 
requirements prescribed under the act.

                       Personal Responsibilities

    OSHA must recognize that it does not have all the answers. 
Moreover, OSHA regulators cannot possibly account for the 
variety of problems and solutions that individual supervisors 
and workers encounter. This section states that ``no citations 
may be issued unless the employer knew, or with the exercise of 
reasonable diligence, would have known, of the presence of an 
alleged violation. No citation may be issued to an employer if 
the employer demonstrates: (A) the employees of the employer 
have been provided with the proper training and equipment to 
prevent such violation; (B) work rules designed to prevent a 
violation have been established, adequately communicated to the 
employees, and the employer has taken reasonable measures to 
discipline employees when the violation of the work rules have 
been discovered; (C) the failure of the employee to observe the 
work rule led to the violations; and (D) reasonable measures 
have been taken by the employer to discover any such 
violation.'' \89\ In addition, any citation given to an 
employer shall be vacated if the employer demonstrates that the 
employees were protected with alternative methods that are 
equally or more protective than the methods required.
---------------------------------------------------------------------------
    \89\ S. 1237, section 9.
---------------------------------------------------------------------------
    The committee has concluded that this language is necessary 
to avoid a one-size-fits-all solution. In addition, 
administrative convenience should not override workplace safety 
and health. If an employer can show that workers receive equal 
or better safety and health benefits from an alternative method 
than with compliance to an OSHA standard, that would constitute 
a valid defense. After all, worker safety is the bottom line.
    To further ensure that employees adhere to Federal and 
State safety and health regulations, a citation may be issued 
by an inspector to an employee found liable for violating 
occupational safety and health law in relation to personal 
protective equipment (i.e. hard hats, eye wear, steel-toed 
shoes). The committee recognizes that Section 5(b) of the OSH 
Act says that ``each employee shall comply with occupational 
safety and health standards and all rules, regulations and 
orders issued pursuant to the act which are applicable to his 
own actions and conduct.'' \90\ The SAFE Act would back this 
provision of current law by making citations a possibility as 
is already the mandated practice for employers.
---------------------------------------------------------------------------
    \90\ Occupational Safety and Health Act, 29 U.S.C. 651(b)(1)(1970).
---------------------------------------------------------------------------

       Eliminating Penalties For Nonserious Paperwork Violations

    Senate bill 1237 would eliminate penalties for certain 
posting or paperwork requirements. The committee has concluded 
that OSHA needs to encourage inspectors to focus on violations 
that place workers at risk, rather than nonserious paperwork 
violations. 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 
(general industry and construction), and container labeling 
were among the most frequently cited standards by OSHA 
inspectors.\91\
---------------------------------------------------------------------------
    \91\ U.S. Department of Labor (October 30, 1995).
---------------------------------------------------------------------------
    The committee intends for the term ``paperwork and posting 
requirements'' to be interpreted consistent with the 
definitions the Department of Labor adopted in its ``posting 
and paperwork'' regulation, CPL 2.111. That regulation applies 
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.'' 
\92\
---------------------------------------------------------------------------
    \92\ OSHA Instruction CPL 2.111, at 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.'' \93\ 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. * * *'' \94\ 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.'' \95\
---------------------------------------------------------------------------
    \93\ ``The New OSHA,'' supra note 52, at 8, see also S. Hrg. 104-
353 at 68.
    \94\ Id. at 68.
    \95\ OSHA Instruction CPL 2.111 at 2.
---------------------------------------------------------------------------
    Consistent with the Department of Labor's reinvention 
efforts, Senate bill 1237 assures that firms will not be fined 
for non-willful, 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 insignificant paperwork 
violations. Although OSHA has made progress in reducing 
citations for posting the OSHA notice and failure to properly 
maintain material safety data sheets, the committee believes 
legislation is necessary to codify the advances that have been 
made.

                        Review by the Commission

    Senate bill 1237 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.\96\ S. 1237 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 the violation has 
been identified, the history of previous violations by an 
employer, and, whether the violation is the sole result of the 
failure of an employer to meet a requirement under this act, of 
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.\97\
---------------------------------------------------------------------------
    \96\ Occupational Safety and Health Act, section 17(j), 29 U.S.C. 
666 (1970).
    \97\ S. 1237, section 11.
---------------------------------------------------------------------------
    Both current law and S. 1237 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 S. 
1237 refer to the good faith of the employer and the history of 
previous violations. Accordingly, S. 1237 simply expands the 
criteria by authorizing the OSHA Review Commission to consider 
whether the violation is the sole result of posting or 
paperwork deficiencies. The committee has concluded that the 
OSHA Review Commission should consider these criteria as 
mitigating factors.

                      Technical Assistance Program

    This section of the legislation would allow States to give 
technical assistance through cooperative agreements with OSHA 
and be reimbursed in an amount that equals 90 percent. To 
increase health and safety awareness, the SAFE Act mandates 
that not less than 15 percent of OSHA's total amount of funds 
appropriated for a fiscal year shall be used for education, 
consultation, and outreach. The SAFE Act's overall objective is 
to increase safety and health in workplaces of all size. To 
that end, this legislation would establish a pilot program in 3 
States to provide expedited consultation services to small 
business employers (as defined by the Small Business 
Administration) for a nominal fee.\98\ Consultation services 
under this pilot program must occur no later than 4 weeks after 
being requested by an employer. In addition, where violations 
were discovered during the consultation, OSHA would issue a 
warning in lieu of citations and conduct no more than 2 visits 
to the workplace to determine if corrective measures have 
occurred. If the violation was not corrected, OSHA could issue 
a citation. The committee has found that small businesses often 
lack the necessary resources to seek a third party consultant. 
Moreover, small businesses who currently request a free 
consultation under existing State cooperative agreements often 
confront an excessive waiting period. Under this pilot program, 
small businesses could still seek a free consultation, or opt 
for an expedited consultation in a participating State.
---------------------------------------------------------------------------
    \98\ S. 1237, section 12.
---------------------------------------------------------------------------

                     voluntary protection programs

    In addition to providing cooperative initiatives for 
employers to establish employer/employee participation programs 
and seek third party consultation services, Senate bill 1237 
would also codify Voluntary Protection Programs (VPP) created 
by OSHA in 1982. VPP currently recognizes larger worksites 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 VPP, the committee intends to provide 
stability and permanence to these important programs. Moreover, 
the committee recognizes that codification reaffirms the 
Federal commitment to providing the private sector with the 
occupational safety and health information needed to comply 
with the law. In addition to codifying the VPP, section 13 of 
S. 1237 would also require OSHA to encourage small businesses 
(as the term is defined by the Administer of the Small Business 
Administration) to participate in the voluntary protection 
program by carrying out assistance and outreach initiatives and 
to develop program requirements that address the needs of small 
businesses. The committee heard testimony and agrees that the 
VPP fosters cooperation and communication which would provide 
the nation's businesses with experience on OSHA procedures, 
techniques, and associated protocols.\99\ Such traits are 
precisely what Senate bill 1237 is designed to promote.
---------------------------------------------------------------------------
    \99\ ``Oversight of the Occupational Safety and Health 
Administration: Hearing before the Senate Subcommittee on Public Health 
and Safety of the Senate Labor and Human Resources Committee,'' 105th 
Cong., 1st Sess., 1997 (Testimony of Jeff Johnston, Manager of OSHA 
Resources for Eastman Chemical Company) at 75.
---------------------------------------------------------------------------

               prevention of alcohol and substance abuse

    Senate bill 1237 would permit employers to establish and 
carry out an alcohol and substance abuse testing program. The 
committee heard testimony and has found that a comprehensive 
safety plan without drug testing falls short of providing the 
necessary protection employees expect from their 
employers.\100\ Such programs would permit the use of on-site 
or off-site drug testing so long as the confirmation tests are 
performed in accordance with the requirements of subpart B of 
the mandatory guidelines published by the Secretary of Health 
and Human Services, State certification, the Clinical 
Laboratory Improvements Act or the College of American 
Pathologists. In addition, the alcohol testing component of the 
program would take the form of alcohol breath analysis and 
would conform to any guidelines developed by the Secretary of 
Transportation for alcohol testing of mass transit employees 
under the Department of Transportation and Related Agencies 
Appropriations Act, 1992. The committee recognized concerns 
raised regarding Federal preemption of State alcohol and 
substance abuse testing laws. S. 1237 would not preempt any 
State law pertaining to alcohol and substance abuse testing 
programs.
---------------------------------------------------------------------------
    \100\ Lail testimony, supra note 78 at 83.
---------------------------------------------------------------------------
    Testing requirements under Senate bill 1237 would not 
prohibit an employer from requiring an employee-applicant to 
submit to and pass a pre-employment alcohol or substance abuse 
test. Nor does it prohibit the employer from requiring an 
employee or manager to submit to or pass an alcohol or 
substance abuse test on a for-cause basis or where the employer 
has reasonable suspicion to believe that an employee or manager 
is using or is under the influence of alcohol or a controlled 
substance; where such test is administered as part of a 
scheduled medical examination; in the case of an accident or 
incident involving the actual or potential loss of human life, 
bodily injury, or property damage; during the participation of 
an employee in an alcohol or substance abuse treatment program, 
and for a reasonable period of time (not to exceed 5 years) 
after the conclusion of such program; or, on a random selection 
basis in work units, locations, or facilities.\101\
---------------------------------------------------------------------------
    \101\ S. 1237, section 14.
---------------------------------------------------------------------------
    The committee has concluded that OSHA should have the 
discretion to conduct testing of employees (including 
managerial personnel) of an employer for use of alcohol or 
controlled substances during any investigation of a work-
related fatality or serious injury as prescribed by Senate bill 
1237.\102\ S. 1237 recognizes that preventing drug and alcohol 
related deaths and injuries is imperative to increasing worker 
safety in America. Employees and managers who are under the 
influence of alcohol or a controlled substance not only 
threaten their own lives, but others working along side them. 
Providing employers with the option of implementing a testing 
program would, at the very least, help lower the number of 
workplace fatalities and injuries.
---------------------------------------------------------------------------
    \102\ Ibid.
---------------------------------------------------------------------------

                       consultation alternatives

    Under current law, Federal and State plan State inspectors 
are not permitted to consult an employer on how to abate a 
hazard, but are required to issue a citation. Senate bill 1237 
would give inspectors the ability to provide employers with 
technical or compliance assistance in correcting a violation 
discovered during an inspection or investigation without 
issuing a citation.\103\ This consultative flexibility would be 
entirely discretionary on the part of the inspector and would 
not undermine the agency's enforcement responsibilities.
---------------------------------------------------------------------------
    \103\ S. 1237, section 15.
---------------------------------------------------------------------------
    This section would permit, not require, OSHA inspectors to 
issue warnings in lieu of citations in appropriate situations. 
The OSH Act states that inspectors must issue a citation when 
they see a violation, although the Act does provide for a ``de 
minimis notice'' (which is not a citation and carries no 
penalty) under sec. 9(a) of the Act for violations that have 
``no direct or immediate relationship to safety or health.'' 
\104\ The committee expects OSHA inspectors to use good 
judgement. If they see a problem, then perhaps a citation is 
required. But if the employer has tried to comply with the law 
and the problem is not serious, a warning could be in order. 
The committee recognizes that current law fails to provide 
inspectors with this type of flexibility.
---------------------------------------------------------------------------
    \104\ Occupational Safety and Health Act, 29 U.S.C. 651(b)(1) 
(1970).
---------------------------------------------------------------------------

                            V. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 14, 1997.
Hon. James M. Jeffords,
Chairman, Committee on Labor and Human Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1237, the Safety 
Advancement for Employees Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                          June E. O'Neil, Director.

               congressional budget office cost estimate

    Summary: S. 1237 would require the Secretary of Labor to 
establish a third party consultation service program to help 
employers comply with the Occupational Safety and Health (OSH) 
Act and avoid a citation. The Secretary would also consider the 
employers' and employees' effort in complying with the act when 
issuing a citation. In addition, it would require the National 
Academy of Sciences to review and make recommendations on 
regulations issued by the Occupational Safety and Health 
Administration (OSHA) before they become final.
    The bill would result in small additional costs to OSHA. 
CBO estimates such costs could be several million dollars in 
the first few years, but would be less than $1 million annually 
thereafter, subject to the availability for appropriations. 
Because S. 1237 would not affect direct spending on receipts, 
pay-as-you-go procedures would not apply.
    The bill contains no intergovernmental mandates, as defined 
in the Unfunded Mandates Reform Act of 1995 (UMRA) and would 
impose no costs on state, local, or tribal governments. S. 1237 
would impose requirements on workers and on the National 
Academy of Sciences that would constitute private-sector 
mandates under UMRA. CBO estimates that the direct cost of 
these mandates would be well below the statutory threshold 
specified in UMRA ($100 million in 1996, adjusted annually for 
inflation).
    Basis of estimate: Sections 4 and 5 would require the 
Secretary to implement a third party consultation services 
program within 18 months of enactment. An employer would have 
the opportunity to hire a consultant to evaluate its workplace 
or safety and health program and report to the employer any 
violations of the OSH Act and appropriate corrective measures. 
Within a specified amount of time, the consultant would 
reinspect the workplace to verify that any violations 
identified in the report had been corrected. If, after the 
reinspection, the consultant determined those violations had 
been or were being corrected pursuant to a written plan, he 
would provide the employer a declaration of resolution. For 2 
years after receiving the declaration, the employer would be 
exempt from the assessment of any civil penalty. However, this 
exemption would not apply if the employer did not make a good 
faith effort to remain in compliance or if there was a 
fundamental change in the hazardousness of the workplace.
    The bill would require the Secretary to establish an 
Advisory Committee to advise her on the consultation services 
program and assist her in developing guidelines for consultants 
to use in evaluating a workplace. In addition, the Secretary 
would approve consultants and develop a registry of those who 
had been approved. The Secretary would be permitted to revoke 
the status of a qualified individual if she determined that the 
individual failed to meet the requirements of the program.
    These sections could increase or decrease spending. On the 
one hand, OSHA would require additional staff to process the 
applications of individuals wanting to be certified as 
consultants, maintain a public data bank of those individuals 
who qualified, and monitor practicing consultants to ensure 
compliance. On the other hand, OSHA would presumably inspect 
fewer workplaces than under current law because it could not 
give citations to employers with a declaration of resolution.
    Most of the costs would arise in processing applications 
for occupational registered nurses and physicians, industrial 
hygienists, and safety professionals who sought certification 
as consultants. Without knowing the required qualifications or 
the demand for consultants, CBO cannot estimate how many 
individuals would apply. If all of the 25,000 people in the 
eligible fields specified in the bill applied, OSHA would spend 
$6 million over the first few years to process applications. 
This estimate assumes that OSHA would employ 32 full-time 
employees at $60,000 per year to process about 8,000 
applications per year. The actual number of applicants would 
likely be only a fraction of the number eligible, however. CBO 
estimates that maintaining the program after the initial pool 
of applications was processed would cost less than $1 million 
annually.
    Assuming that OSHA would rarely inspect facilities with 
declarations of resolution, giving employers the option to hire 
private consultants would shrink the pool of employers OSHA 
needed to inspect, thus decreasing the agency's need for 
resources. However, CBO estimates that the decrease would be 
negligible. First, many of the people eligible to be 
consultants might inspect few workplaces. Second, it is 
unlikely that OSHA would otherwise have inspected many of the 
employers seeking declarations of resolution.
    Section 6 of the bill would require the Secretary to have 
all rules reviewed by the National Academy of Sciences (NAS) 
before they were finalized. Under current law, the Secretary 
may issue a final standard if she publishes the proposed rule 
in the Federal Register and if there are no objections to the 
proposed rule, or after a hearing in response to any 
objections. Under this section, the Secretary would not be able 
to publish the final rule without first submitting it to NAS 
for its recommendations. The Secretary could decide whether to 
include the recommendations of the NAS in the final rule, but 
the bill would require the recommendations to be published with 
the final standard in the Federal Register. This provision 
could require the Secretary to hire one additional employee, 
but the annual cost would be negligible.
    Section 7 would require Federal employees responsible for 
enforcing the OSH Act to meet the same eligibility requirements 
as qualified individuals under the consultation services 
program created in Sections 4 and 5. Many of the inspectors 
currently working for OSHA do not meet the criteria specified 
in the bill, and many could require additional training and 
certification if OSHA inspectors were held to these standards. 
However, because the bill would allow the Secretary to 
determine criteria by which current employees would qualify, 
CBO estimates this provision would result in minimal additional 
costs.
    Section 9 would provide additional grounds on which 
employers could contest citations for noncompliance issued by 
OSHA. It would require citations to be vacated if employers 
could demonstrate that employees were protected by methods at 
least as stringent as the OSHA regulation being violated. These 
provisions could increase OSHA's litigation costs by increasing 
the incentive for employers to contest citations, but the 
increase would not be significant.
    In addition, this section would authorize the Secretary to 
assess a civil penalty against an employee who willfully 
violated an OSHA requirement with respect to personal 
protective equipment. If the employee contested the citation or 
penalty, the Occupational Safety and Health Review Commission 
would be required to have a hearing and make a determination on 
the citation. Under current law, the Secretary cannot cite 
employees. This provision could increase the amount of 
penalties collected, but the increase would not be significant.
    Section 12 would require the Secretary to establish a pilot 
program providing expedited consultation services to small 
businesses in three States for a maximum period of 2 years. 
Within 90 days of the termination of the program, the Secretary 
would submit a report to Congress evaluating the pilot program. 
CBO estimates that the pilot program would not significantly 
affect Federal spending.
    Section 14 would permit employers to establish an alcohol 
and substance abuse testing program. It would also authorize 
the Secretary to test employees for use of alcohol or 
controlled substances during any investigations of a work-
related fatality or serious injury. Under current law, the 
Secretary has access to the tests performed through the 
employer. CBO estimates that the cost of any additional tests 
the Secretary would perform as a result of this provision would 
not be significant.
    Pay-as-you-go-consideration: None.
    Estimated impact on State, local, and tribal governments: 
S. 1237 contains no intergovernmental mandates as defined in 
UMRA and would impose no costs on State, local, or tribal 
governments. State participation in the affected programs is 
voluntary. The bill would codify an existing OSHA program that 
funds cooperative agreements with States that provide workplace 
safety consultation services to businesses. In fiscal 1997, $34 
million was appropriated for this program.
    Estimated impact on the private sector: S. 1237 would 
impose two mandates on private-sector entities--one regarding 
the scientific review of OSHA standards by NAS and the other 
regarding testing of certain workers for controlled substances. 
Section 6 of the bill would require the NAS--which is a private 
organization, not a governmental entity--to appoint a 
scientific review committee to review and make recommendations 
on draft versions of OSHA standards. Ordinarily, Federal 
agencies contract with NAS for research or analysis and 
providing funding for those endeavors. However, S. 1237 is 
silent on the issue of funding. CBO estimates that the cost to 
NAS of undertaking these reviews would be about $2 million 
annually. Section 14 of the bill would give the Secretary of 
Labor the authority to conduct tests for alcohol or controlled 
substances on private-sector workers during investigations of 
work-related fatalities or serious injuries. CBO estimates that 
taking such test would impose negligible monetary costs on 
affected workers.
    Estimate prepared by: Federal Cost: Cyndi Dudzinski; Impact 
on State, local, and tribal governments: Marc Nicole; Impact on 
the private sector: Katherine Rarick.
    Estimate approved by: Paul N. Van de Water, Assistant 
Director for Budget Analysis.

              VI. Application of Law to Legislative Branch

    Secion 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act (CAA), requires a description of the 
application of this bill to the legislative branch. S. 1237 
amends the Occupational Safety and Health Act of 1970 (OSH Act) 
to further improve the safety and health of working 
environments, and for other purposes. S. 1237 amends section 
8(f) of the OSH Act to require additional information to be 
included in an employee's written request for an inspection, 
and to provide alternative methods, in additional to onsite 
inspections, to determine whether reasonable grounds exist to 
believe that the complain of hazard exists. S. 1237 also amends 
section 9 of the OSH Act to consider employer knowledge of an 
alleged violation when issuing a citation, and to permit 
demonstration by an employer of satisfactory alternative 
methods of protection of the safety and health of its 
employees. S. 1237 further amends section 9 to allow inspectors 
to exercise discretion regarding the issuance of a citation. 
Section 215(a)(1) of the CAA requires each employing office and 
each covered employee of the legislative branch to comply with 
the provisions of section 5 of the OSH Act. Section 215(b) of 
the CAA requires that the remedy for a violation shall be an 
order to correct the violation as would be appropriate under 
section 13(a) of the OSH Act. Section 215(c)(1) and (2) of the 
CAA grants the General Counsel of the Office of Compliance the 
authority granted the Secretary of Labor in sections 8(a), 
8(d), 8(e), 8(f), 9 and 10 of the OSH Act. Section 215(c)(4) of 
the CAA grants the Board of Directors of the Office of 
Compliance the authority granted the Secretary of Labor in 
sections 6(b)(6) and 6(d) of the OSH Act. S. 1237 amends 
sections 8(f) and 9 of the OSH Act. Therefore, the changes made 
by S. 1237 to sections 8(f) and 9 apply to the legislative 
branch.

                    VII. Regulatory Impact Statement

    The committee has determined that there will be only a 
negligible increase in the regulatory burden of paperwork as a 
result of this legislation.

                   VIII. Section-by-Section Analysis

    Section 2: Purpose.--To increase the joint cooperation of 
employers, employees, and OSHA in an effort to ensure safe and 
healthful working conditions for employees.
    Section 3: Employee and Employer Participation Programs.--
Would permit employers to establish employer and employee 
participation programs which exist for the sole purpose of 
addressing safe and healthful working conditions. This section 
would not amend the National Labor Relations Act or the Railway 
Labor Act.
    Section 4: Establishment of Special Advisory Committee.--
Would establish an advisory committee pursuant to the Federal 
Advisory Committee Act of 1972 for the sole purpose of advising 
OSHA on the construction, implementation, and administration of 
the Third Party Consultation Services Program prescribed in 
Section 5. The advisory committee shall consist of 3 employees, 
3 employers, 2 from general public, and 1 state official from 
State plan state. Each committee member shall have safety and 
health experience as defined by education.
    Section 5: Third Party Consultation Services Program.--
Would allow employers the option of hiring OSHA qualified 
individuals who are State licensed physicians, industrial 
hygienists, professional engineers, safety engineers, safety 
professionals, registered nurses, state/OSH inspectors for more 
than 5 years, accredited by a nationally recognized private 
accreditation organization, individuals with 10 years workplace 
safety and health experience, or individuals determined to be 
qualified by OSHA to perform workplace safety and health 
consultations. If an employer complies with the qualified 
consultant's recommendations, OSHA shall grant a 2-year 
exemption from civil penalties for that workplace. All 
qualified consultants are kept on a registry by OSHA and may be 
revoked from participating if he/she fails to meet the 
requirements of the program or commits malfeasance, gross 
negligence, or fraud in connection with any consultation 
services. All safety and health records shall not be admissible 
in a court of law, administrative or enforcement proceeding 
against the employer except to show that a qualified consultant 
failed to meet program requirements or performed malfeasance, 
gross negligence or fraud. A participating employer must make a 
good faith effort to stay in compliance and not fundamentally 
change the workplace in order to maintain the 2-year exemption 
from civil penalties.
    Section 6: Independent Scientific Peer Review.--Prior to 
issuing a final rule, OSHA must submit the draft rule and copy 
of the rule-making record to the National Academy of Sciences 
(NAS) for review and comments. The NAS will appoint an 
independent scientific review committee to analyze and publish 
comments on the appropriateness and adequacy of the scientific 
data, scientific methodology, and scientific conclusions 
adopted by OSHA in the Federal Register.
    Section 7: Continuing Education and Professional 
Certification for Certain Occupational Safety and Health 
Administration Personnel.--OSHA personnel performance 
inspection, consultation and standards promulgation functions 
requiring knowledge of safety and health disciplines would be 
required to obtain private sector professional certification 
within 2 years of initial hire at OSHA. Such personnel must 
also receive ongoing professional education and training every 
5-years of employment.
    Section 8: Inspection Procedures and Quotas.--Would 
formalize inspection request procedures by alerting OSHA of 
whether the alleged violation has been brought to the attention 
of theemployer and if so, whether the employer has refused to 
take any action to correct the alleged violation. Would require OSHA to 
conduct an inspection for the limited purpose of determining whether a 
violation exists and provide a written statement of the reasons for the 
determination to employee or employee representative upon their 
request. Would codify OSHA policy of contacting an employer by 
telephone, fax, or other appropriate methods to determine whether the 
employer has taken corrective action and whether there are reasonable 
grounds to believe that a hazard exists. This section would also codify 
OSHA policy that no quota policy for any subordinate within OSHA with 
respect to the number of inspections conducted, citations issued, or 
penalties collected may be established. OSHA would be required to 
report annually on the number of employers in compliance with respect 
to consultations services and inspections.
    Section 9: Personal Responsibility.--Would codify OSHA's 
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. The section would also permit an inspector to issue a 
citation to an employee who is found liable for violating 
occupational safety and health law as it pertains to their 
personal protective equipment.
    Section 10: Reduced Penalties for Paperwork Violations.--
Employers who violate posting or paperwork requirements, other 
than fraudulent reporting, shall not be assessed a civil 
penalty for such a violation unless OSHA determines that the 
employer has willfully or repeatedly violated such 
requirements.
    Section 11: Review by the Commission.--Would require the 
OSHA Review Commission to give ``due consideration'' to certain 
factors when assessing the appropriateness of a penalty (i.e. 
the size of an employer, the number of employees exposed to the 
hazard, history of previous violations, etc.)
    Section 12: Technical Assistance Program.--Would codify 
OSHA/state cooperative programs and establish a 2 year pilot 
program where small businesses may receive an expedited 
consultation no later than 4 weeks after the employer's request 
for a nominal fee determined by OSHA. This section would also 
earmark 15 percent of OSHA's annual appropriation for 
education, consultation and outreach efforts.
    Section 13: Voluntary Protection Programs.--Would establish 
OSHA/business cooperative agreements that encourage safety and 
health management systems in exchange for inspection and 
certain paperwork requirement exemptions. This section would 
also require OSHA to encourage small business participation in 
the voluntary protection program by providing outreach and 
assistance initiatives and develop program requirements that 
address the needs of small businesses.
    Section 14: Prevention of Alcohol and Substance Abuse.--
Would permit employers to establish and carry out an onsite or 
offsite alcohol and substance abuse testing program in 
accordance with the requirements of subpart B of the mandatory 
guidelines published by the Secretary of Health and Human 
Services, State certification, the Clinical Laboratory 
Improvements Act or the College of American Pathologists. 
Testing programs prescribed by this section would not preempt 
State law.
    Section 15: Consultative Alternatives.--Would permit an 
OSHA inspector to provide technical or compliance assistance to 
an employer in correcting a violation discovered during an 
inspection or investigation without issuing a citation. Would 
require each citation to be in writing and describe with 
particularity the nature of violation including a reference to 
the provision of the OSH Act of 1970, regulation, rule, or 
order alleged to have been violated. In addition, the section 
would permit an inspector to issue a warning in lieu of a 
citation with respect to a violation that has no significant 
relationship to employee safety or health or when an employer 
acts in good faith to promptly abate a violation if the 
violation is not willful or repeated.

   IX. VIEWS OF SENATORS KENNEDY, DODD, HARKIN, MIKULSKI, BINGAMAN, 
                       WELLSTONE, MURRAY AND REED

                              introduction

    The so-called ``Safety Advancement for Employees Act'' 
proposes a wholesale reversal of OSHA's approach, but there is 
virtually no evidence that the agency or the American workforce 
would benefit. In essence, the bill seeks to fix a problem that 
does not exist. But it refuses to address what are genuine 
concerns about OSHA. Citing outdated statistics and deeply 
flawed sources, while ignoring more recent data that undermine 
its assertions, the Majority claims that OSHA should move from 
what is allegedly an ``adversarial'' approach to a 
``collaborative'' approach. The Majority fails to acknowledge 
the changes in approach that OSHA has made since 1993, and 
instead repeatedly cites anecdotal industry complaints about 
perceived regulatory burdens. This is not sound lawmaking, and 
S. 1237 is an unacceptable piece of legislation.
    The original OSH Act combines strong enforcement of 
standards with education and training of employees and 
employers. The ``SAFE'' Act is premised on the notion that this 
balanced approach has failed to reduce job injuries, illnesses, 
and fatalities. This premise is false. Recent data demonstrate 
that the ``New OSHA'' has achieved new levels of effectiveness. 
Injury and illness rates are at historically low levels--the 
lowest since the Bureau of Labor Statistics began tracking this 
data in 1973. According to the Bureau of Labor Statistics 
Annual Survey of Occupational Injuries and Illnesses, the 
overall private sector job injury/illness rate declined from 11 
per 100 full-time workers in 1973, to a record low rate of 7.4 
per 100 workers in 1996. This is an overall decline of 32.7 
percent. And, the number of fatal work injuries fell in 1996 to 
6,112, the lowest level in the five-year history of this Bureau 
of Labor Statistics survey. From 1948 through 1970, the 
occupational death rate declined by 37.9 percent. Between the 
OSH Act's enactment in 1970 and 1992, that rate declined by 
over 60 percent. The current figures are still unacceptably 
high, but they do not show that OSHA's approach ``has failed 
American workers,'' as the Majority contends.
    Further, the evidence shows that OSHA works most 
effectively where the agency has targeted its enforcement 
efforts. The most significant reductions in injury/illness 
rates have occurred in those sectors which have been the most 
heavily regulated. In manufacturing and construction, the 
industries which have received the vast majority of OSHA 
inspections, the injury and illness rates have declined by 30.7 
percent and 50 percent respectively, since 1973. The mining 
industry, which has a much more intensive inspection frequency 
under the Mine Safety and Health Act, has experienced the 
greatest decline in injury and illness rates--57 percent since 
1973.
    The results have been dramatically different in those 
industries that have received little or no attention, where 
safety and health have been left largely to voluntary 
compliance efforts by employers. Those sectors have made little 
or no progress in reducing job injuries and illnesses. In both 
the finance sector and service sector there has been no decline 
in injury rates. Within the service sector, injury rates in 
nursing homes and hospitals have been increasing with rates in 
both of these industries now higher than injury rates in 
construction, once one of the most hazardous industries. With 
the large growth in employment in the finance and service 
industries, they are responsible for a major part of the 
overall occupational injury and disease burden in this country.
    The experience under the Occupational Safety and Health Act 
argues for more enforcement, not less, and for enforcement that 
is targeted to those sectors and those workplaces where serious 
injuries and illnesses are occurring. These enforcement efforts 
need to be complemented and supported by outreach, compliance 
assistance and training and education for both employer and 
employees.
    This is the approach that OSHA is now taking with its 
cooperative compliance program (CCP). The agency is using 
employer-supplied data on job injuries to target its efforts to 
those industries and employers with the highest rates of 
serious injuries. Those with the highest rates are being placed 
on the primary inspection list and inspected, as is 
appropriate. Those firms in the next tier have been notified 
that they have been targeted due to their high rates, but are 
being offered a chance to take steps to address job hazards 
before OSHA inspects. If they agree to participate and to 
establish a safety and health program, identify and correct 
hazards and involve workers and unions in the process, they are 
placed on a secondary inspection list with a reduced frequency 
of inspection. If OSHA does inspect, and the employer is taking 
appropriate steps to protect workers, the employer's actions 
will be recognized with the result being a more focused review, 
fewer citations and reduced penalties for any violations found.
    This targeted approach is supplemented by outreach and 
assistance. It treats employers differently based on their 
performance in protecting workers. OSHA's current model is much 
sounder than the approach in the ``SAFE'' Act, which allows 
employers to contract out their job safety responsibilities to 
a third party, immunizes the employer from penalties and takes 
away OSHA's ability to enforce the law even where serious 
violations are present.
    The burden is on those who want to change OSHA's present 
system to justify their proposals, but the Majority falls 
woefully short. This is due in large measure to the inadequate 
record on which the Majority relies. There has been no hearing 
on any OSHA ``reform'' measure in the 105th Congress. There was 
a hearing before the Subcommittee on Public Health and Safety 
on July 10, 1997, but it was not a legislative hearing. 
Moreover, at the time of that hearing, the present bill had not 
even been introduced. The hearing instead focused on oversight 
of the Occupational Safety and Health Administration. A panel 
of Senators discussed possible legislation, and certain of the 
witnesses did so as well, but the hearing was denominated 
``OSHA Oversight'' and that was its principal emphasis. 
Comprehensive restructuring of an agency should not be based on 
so slender a record.
    The Majority relies heavily on an eight-year-old report by 
the General Accounting Office. But it does so selectively, 
focusing on a single one of the report's twenty 
recommendations, while ignoring all the rest. Further, the 
Majority utterly fails to acknowledge the substantial evidence, 
obtained since 1990 which demonstrates the deficiencies in the 
one recommendation it highlights. Such one-sidedness makes the 
validity of the proposal being advanced highly suspect.
    The goal of the 1970 OSH Act is ``to assure so far as 
possible every working man and woman in the Nation safe and 
healthful working conditions and to preserve our human 
resources.'' OSHA has traditionally sought to achieve this goal 
by employing a balanced approach that includes compliance 
assistance, education and training and free consultation 
services for small businesses, with a foundation of strong 
enforcement of protective standards. The Majority seeks to 
replace this balanced approach with a one-sided tilt toward 
``collaboration'' that would erode OSHA's enforcement 
foundation. The Majority has chosen to ignore the advice of 
experts who warn that many employers will lose interest in 
collaboration if OSHA fails to maintain a credible enforcement 
program. Because of this and many other deficiencies, the eight 
members of the Minority oppose the present bill.
    So, too, does the Administration. Secretary of Labor Alexis 
M. Herman advised the Majority that the Administration opposes 
the enactment of this bill ``because it would compromise 
workplace safety and health.'' Contrary to the Majority, the 
Administration believes that the bill ``would greatly diminish 
the ability of the Occupational Safety and Health 
Administration to administer and enforce the OSH Act.'' 
Accordingly, the Secretary will recommend a veto if the bill is 
passed by the Congress and presented to the President. (A 
complete copy of the Secretary's letter is appended at the 
conclusion of the Minority views.)
    For all the reasons set forth by the Secretary, as well as 
those below, the Minority opposes the enactment of this 
legislation.

                           third-party audits

The majority's inadequate evidentiary record

    The Majority's reliance on outdated and anecdotal data is 
especially glaring in its treatment of section 5 of the bill. 
First, the Majority contends that ``regulatory burdens'' make 
it impossible for employers, especially small businesses, to 
comply with OSHA standards. As evidence, it relies almost 
exclusively on a 1996 GAO report entitled ``Regulatory Burden: 
Measurement Challenges and Concerns Raised by Selected 
Companies.'' But that report does not withstand even the most 
minimal scrutiny. As the Majority itself admits, ``[f]ifteen 
geographically dispersed companies voluntarily chose to 
participate in the review.'' Comprehensive changes in a 
statutory scheme should not be based on anecdotes submitted by 
a tiny number of parties who are both self-selected and self-
interested.
    The Majority also selectively cites a 1990 GAO report 
entitled ``Occupational Safety and Health--Options for 
Improving Safety and Health in the Workplace'' as support for 
its third-party consultation proposal. The Majority totally 
ignores the GAO's warning that ``a possible disadvantage of 
such an approach is the potential conflict of interest. The 
safety or health specialists might be reluctant to antagonize 
employers by identifying all the hazards. A vigorous monitoring 
role by OSHA would be needed to overcome such difficulties.'' 
Report at 35.
    The Majority also relies heavily on recommendations made in 
1993 by Vice President Gore's National Performance Review. That 
document proposed the use of private firms to audit employers' 
safety and health programs. Since that proposal, the Department 
of Labor and OSHA have become far more cautious about the 
potential success of a third-party consultant program. The idea 
of third-party audits was the subject of a two-day meeting of 
OSHA's stakeholders in July 1994. Both labor and business 
representatives expressed concern at that time. Specific 
concerns included ``questions about who would validate the 
third parties * * * [and] concerns about legal liabilities. 
Many participants were persistent in asking whether these third 
parties would act as agents of the courts, OSHA, employees or 
the company. Still others expressed the view that certification 
could not be considered outside the context of a safety and 
health program standard. Some stakeholders encouraged OSHA to 
examine and evaluate the effectiveness of its existing programs 
in corporate-wide settlements and labor-management safety and 
health committees before embarking on new (and untested) one 
like third-party certification.'' Revitalizing OSHA, 
Stakeholders' Meeting July 20-21, 1994--Highlights at 4. See 
also Occupational Safety and Health Reform and Reinvention Act: 
Hearing on S. 1423 Before the U.S. Senate Committee on Labor 
and Human Resources, 104th Cong., 1st Sess. 56 (Statement of 
Assistant Secretary Joseph Dear) (other concerns included 
``Should OSHA divert its limited resources to facilitate a 
costly certification process? Who would pay for the audit?'').
    Further, a 1996 survey of employers by the State of North 
Carolina demonstrated a resounding preference on the part of 
employers for an OSHA consultant rather than a private 
consultant--even if it meant waiting six months for the 
consultation. ``Having a genuine OSHA inspector employed by the 
state adds a lot of clout in terms of compliance with 
recommendations,'' according to one survey respondent. ``Having 
been a private management consultant, I know from experience 
that purchased advice is often not followed, because the 
purchaser owns it.'' The North Carolina respondents also said 
they feared third-party consultants might try to sell them 
unnecessary services that would have little impact on workplace 
safety. Overall, 79 percent of employers in the North Carolina 
survey reported that they would prefer to have OSHA offer its 
services exclusively, without any ``help'' from third-party 
consultants. Thus there are serious questions whether employers 
would make use of consultation services, even if they were 
enacted.

Deficiencies in the proposal

    Section 5 of the bill requires the Secretary of Labor to 
establish a program to ``qualify'' persons to serve as 
consultants to employers, in order to help them identify and 
correct workplace safety and health hazards. Employers could 
then hire or contract with such a consultant for those 
services. If the consultant declared the employer was in 
compliance with the OSH Act, or was proceeding under a plan to 
abate any identified hazards, the employer would be exempt from 
any assessment of a civil penalty under the act for 2 years, 
with certain limited exceptions.
    The potential for conflict of interest and abuse is 
obvious. The bill permits employers to use their own employees 
to conduct the ``consultation.'' Employees subject to 
discipline, a failure to be promoted, or discharge are very 
likely to give their employers only good news. Even an outside 
consultant is likely to feel pressured to approve the 
employer's program, or risk the termination or non-renewal of a 
contract. And, the bill does not prevent an employer from 
``shopping'' for a consultant until it locates someone willing 
to approve the employer's operations. Such consultants will 
inevitably feel pressure to avoid recommending costly 
improvements even when they are necessary to prevent an injury 
or illness. In short, section 5 could effectively permit 
employers to purchase immunity from OSHA penalties--even where 
a death or serious injury has resulted from a violation of the 
law. This will not make workplaces safer.
    Section 5's 2-year penalty exemption for employers using 
private consultants is deeply troubling. The only large-scale 
study performed to date found that OSHA inspections resulting 
in the assessment of penalties led to a 22 percent reduction in 
injuries at the inspected site for three years following the 
inspection. Wayne Gray and John Scholz, ``Does Regulatory 
Enforcement Work? A Panel Analysis of OSHA Enforcement,'' Law 
and Society Review at 177-213 (July 1993). The study also found 
that inspections without penalties have no appreciable impact 
on subsequent rates of injuries. By immunizing employers from 
penalties for two years, the bill discards one of the most 
effective tools available to reduce occupational injuries.
    The exceptions to the penalty waiver do not improve the 
provision. If a consultant issued a ``declaration of 
resolution,'' a term not defined in the legislation, OSHA could 
levy a penalty only if the agency could show that there had 
been a ``fundamental change in the hazards'' of the workplace, 
or that the employer had not made a good faith effort to remain 
in compliance. OSHA would be barred from assessing a penalty 
for 2 years, even if conditions at the workplace had changed 
materially since the consultant issued a ``declaration.'' 
Again, this will not improve safety on the job.
    As introduced, section 5 required that employers abate all 
violations and be in compliance with the OSH Act before the 
consultant could issue a declaration of compliance and the 
employer could be eligible for penalty immunity. However, at 
the markup the Majority adopted an amendment to allow employers 
to be declared ``in compliance'' if they were simply following 
an abatement plan.
    In introducing the amendment, Senator Enzi stated that it 
was necessary to accommodate those situations that might take 
longer to abate. He also stated that it was consistent with 
OSHA's abatement verification rule, which requires employers to 
submit plans and a schedule to OSHA for violations with longer 
abatement periods. This is incorrect. There is a fundamental 
difference between S. 1237 and OSHA's abatement verification 
rule. OSHA's rule operates to provide OSHA with verification 
that abatement of a violation has taken place by a date set by 
the agency.
    By contrast, under section 5 of S. 1237, there is no 
requirement whatever for any abatement date to be set. Under 
this legislation, the employer is eligible for complete penalty 
immunity simply if it is following an abatement plan. This is 
true even if serious hazards are present and there is no 
schedule for abatement. If the employer nonetheless chose to 
set a schedule for abating the hazards, that schedule could be 
many times longer than the time period that would be permitted 
by OSHA for similar violations identified in enforcement 
inspections. This provision makes S. 1237 still more 
objectionable than it was when first introduced.
    Section 5 also confers an extremely broad evidentiary 
privilege on employers' self-audit documents. Under the bill's 
``Access to Records'' provision, documents relating to any 
employer-initiated self-inspection activity could not be used 
in any legal proceeding involving the employer. This complete 
privilege would apply even if the employer had not engaged in a 
third-party ``consultation'' of the sort described in the bill.
    The privilege would complicate OSHA enforcement enormously. 
The agency would be forced to reach conclusions about workplace 
hazards, injuries and illnesses without any involvement of 
those with firsthand knowledge. Access to consultants' reports 
can be critical to demonstrate who is responsible for 
occupational injuries. For example, in the Tewksbury Industries 
case, insurance company and state consultants had recommended 
safety improvements for years. The employer ignored the 
recommendations and, in July 1994, two workers were killed as a 
result. Antonio Lopez, 48, was pulled into the rotating parts 
of an unguarded conveyor belt and Earl Shikles, 31, was run 
over by a front-end loader with inoperable brakes. The 
Massachusetts Attorney General ultimately indicted the 
company's president for manslaughter, based in part on the 
president's failure to address the recommendations. In many 
fatality and catastrophe investigations, self-audit records and 
reports are the most reliable--and often the only--way to 
establish the facts. In practice, OSHA does not use an 
employer's self-audit records against an employer that made 
good faith efforts to protect its workers. Accordingly, this 
provision would protect only those employers who identified 
hazards but consciously chose not to correct them.
    The bill says nothing about a consultant's obligations 
where an employer is found not to be in compliance with the 
law. Under section 5, a consultant might refuse to provide a 
declaration regarding a particular workplace, leaving the 
employer free to ``shop'' for another consultant. The bill does 
not require that consultants report an employer's refusal to 
abate to OSHA--even where serious hazards are present. And, the 
total confidentiality of the consultant's report denies 
employees and the agency the ability to verify that the 
employer did abate the hazards that were identified.
    Finally, the bill fails to specify even the most minimal 
qualifications for a consultant. Accordingly, any medical 
doctor could be qualified as a health and safety consultant, 
even without any experience or expertise in identifying and 
abating occupational safety and health hazards. This could 
yield absurd results. Contracting with a pediatrician for an 
OSHA ``consultation'' will not improve safety in a 
manufacturing facility, and psychiatrists' trainingtypically 
provides little exposure to OSHA's trenching standards.

National Academy of Sciences review of OSHA standards

    Section 6 of the bill imposes burdensome new requirements 
on OSHA's standard-setting process. It requires the Secretary 
of Labor to submit draft final standards to the National 
Academy of Sciences, which would appoint an Independent 
Scientific Review Committee. That Committee would review the 
standards in light of the available scientific literature, and 
provide recommendations before standards could become final.
    This process is unnecessary and time-consuming. First, the 
Majority has made no showing that additional scientific review 
is needed, and it is doubtful that they could. In fact, OSHA's 
standard-setting process already incorporates significant 
opportunities for scientific review. OSHA issues standards only 
after a lengthy administrative process, including extensive 
public hearings, comprehensive scientific testimony, and 
rigorous review by agency officials and the public. Scientific 
peer review is an integral part of this process, and it takes 
place in many ways. During the hearings on a proposed OSHA 
rule, any scientist--or interested non-scientist, for that 
matter--can cross-examine OSHA officials or the agency's expert 
witnesses regarding any aspect of the proposed rule. The cross-
examination is conducted in the open and on the record. As one 
court observed, ``OSHA * * * has wisely acted by regulation to 
go beyond the minimum requirements of the statute and to expand 
[its] capacity to find facts by providing an evidentiary 
hearing in which cross-examination is available.'' Industrial 
Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 476, 476 
(D.C. Cir. 1974). The National Academy of Sciences panels, by 
contrast, typically function in private. The Majority fails to 
demonstrate how adding a layer of secrecy to rule-making would 
improve job safety.
    Not only is OSHA's process more than adequate, but its 
results are exemplary. OSHA's standards are one of the agency's 
greatest successes. The lead standard has reduced by over two-
thirds the poisoning of smelting and battery plant workers 
since it was issued in 1978. No longer do thousands of such 
workers suffer anemia, nerve disorders, seizures, brain damage 
or even death from prolonged exposure to lead. Similarly, the 
1978 cotton dust standard reduces the rate of brown lung cases 
among textile workers from some 40,000 to a few hundred. The 
grain dust standard reduced fatalities from grain elevator 
explosions by more that 50 percent. The trenching standard led 
to a two-thirds reduction in fatalities at trenching and 
excavation sites, since OSHA strengthened that standard in 
1990. The list goes on and on.
    Virtually all of the 93 standards that OSHA has issued 
since 1970 have been challenged in court. All but three of 
those challenges have resulted in the standard's affirmance. 
The cotton dust standard, for example, was affirmed by the 
Supreme Court of the United States. ATMI v. Donovan, 452 U.S. 
490 (1981).
    In section 6 as in many other provisions, the bill attempts 
to correct a problem that does not exist. But section 6 is not 
just unnecessary--it is dangerous. It will delay the 
implementation of important safety provisions. The typical 
National Academy of Sciences panel requires between 18 and 24 
months to complete its work. Workers will be left unprotected 
against occupational hazards for an average of 2 additional 
years, resulting in more occupational injuries and illnesses 
that could have been prevented. This outcome is unconscionable.
    The Majority's response to these concerns is twofold. 
First, it asserts that ``the addition of an independent 
scientific peer review will ultimately speed up the 
implementation process for OSHA's rules.'' The Majority gives 
no explanation and cites no support for this astonishing 
claim--because none exists. Second, and more disturbingly, the 
Majority cites anecdotal reports from employers complaining 
about ``the overwhelming number of complex regulations 
prescribed by OSHA.'' Imposing redundant processes that will 
delay the issuance of additional standards takes on an ominous 
appearance in light of the Majority's oft-expressed concern for 
the employers registering such complaints.
    Section 6 also contains a perverse incentive for OSHA to 
ignore NAS recommendations. If the NAS panel suggests changes 
in OSHA's standard, and OSHA incorporates those changes, the 
standard must be returned to the NAS for still another review. 
OSHA would confront the extraordinary choice between delaying 
the issuance of its standard for another two years, or simply 
ignoring NAS's recommendation altogether. Either OSHA's 
standards would be delayed for some 4 years beyond the time 
when the agency first deemed them ready for implementation, or 
the NAS review process would be rendered meaningless. Neither 
outcome is acceptable, yet both are inevitable.
    As the Secretary of Labor explained, NAS review adds ``a 
redundant and unnecessary level of review, thereby delaying the 
promulgation of safety and health protections.'' For this 
reason among many others, the Secretary concluded that the bill 
``could present unacceptable dangers to the health and safety 
of American workers.'' The Minority joins with the Secretary in 
that conclusion, and endorses her opposition to this provision 
of the bill.

Penalizing employees

    Section 9 of the bill authorizes OSHA to penalize an 
employee who willfully violates the requirements of the statute 
or any rules or standards thereunder by not wearing personal 
protective equipment. This provision undermines a central 
principle of the OSHA Act: that employers are in the best 
position to control workplace safety and health. In so doing, 
it reduces employers' responsibility for conditions on the job. 
Current law gives employers the right, and all the tools 
necessary, to discipline employees. If employees refuse to obey 
the law, then employers should use that authority.
    This provision seeks to instill in employees the same fear 
that the Majority claims employers already feel toward OSHA. 
The Majority admits that section 9 would subject employees to 
``citations'' for failing to wear personal protective 
equipment. What it carefullyfails to mention is that such 
citations carry maximum penalties of $70,000--an enormous, crushing 
financial burden for workers who may earn $15,000 a year or less. The 
threat of such penalties may well so terrify employees that they will 
refuse to call OSHA even when their employer engages in obviously 
dangerous practices. The system established under current law, which 
relies heavily on employees to notify OSHA when they face serious 
threats to safety or health, will be seriously undermined by this 
provision.

Employer defenses

    Section 9 of the bill also would create an entirely new 
statutory defense to an OSHA citation, based on an employer's 
demonstration that employees were protected by alternate 
methods as protective as or more protective than those required 
by the standard the employer violated. This provision could 
seriously undermine OSHA's standards, and transform every 
enforcement action into a costly and time-consuming variance 
proceeding.
    The Occupational Safety and Health 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 
demonstrate that a variance has either been sought or would be 
inappropriate.
    Under these rules, the challenge rate has remained 
relatively low; fewer than ten percent of all citations are 
currently contested. Under section 9, however, virtually every 
employer cited for violating the statute or its interpretive 
regulations could claim that an alternative means of compliance 
was as effective as the standard in question. In effect, 
standards would become guidelines, subject to challenge--and 
potential waiver--in every contested case.
    As a consequence, judges with little or no safety and 
health expertise would make determinations about 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.

Employee participation programs

    Section 3 of the bill would permit an employer unilaterally 
to establish an employee involvement mechanism, free from the 
restrictions normally imposed by section 8(a)(2) of the 
National Labor Relations Act, 29 U.S.C. section 158(a)(2). The 
employer could designate employees' representatives on the 
committee, set the agendas, choose which if any recommendations 
to implement, and disband the committee if its processes were 
not to the employer's liking.
    This is the so-called ``TEAM Act,'' albeit limited to 
safety and health committees. That legislation, S. 295 in both 
the 104th and 105th Congresses, permitted employers to 
establish company unions. In the present bill, such sham unions 
would be authorized, as long as they only addressed safety and 
health issues. Section 3 of the bill would exempt from NLRA 
protection any employee participation mechanism--no matter how 
one-sided, coercive, unfair or employer-dominated--that deals 
with employee safety and health conditions. This provision 
would overthrow more than 60 years of labor law protecting 
employees' right to be represented only by representatives of 
their own choosing.
    But section 3 of this bill is actually less protective of 
employee rights than the TEAM Act in two important respects. 
First, the TEAM Act applies section 8(a)(2) to committees that 
``have or claim authority to negotiate or enter into collective 
bargaining agreements.'' Section 3 of this bill has no such 
limitation. Thus, an employer-dominated safety committee could 
``negotiate'' a ``collective bargaining agreement'' that would 
bind all employees in the workplace, free from any 
proscriptions under the NLRA. But management representatives 
should not be permitted to contract with themselves and purport 
to be representatives of their workers. This is precisely the 
sort of conduct that section 8(a)(2) was designed to prevent.
    Second, the TEAM Act limits the exemption from section 
8(a)(2) to entities ``in which employees participate to at 
least the same extent practicable as representatives of 
management participate.'' Section 3 of this bill contains no 
such limitation. Thus management could establish a ``joint'' 
safety committee with workers, and appoint an unlimited number 
of managers but only a single rank and file employee. The 
committee could negotiate agreements with management on safety 
issues, but still be protected from challenges under the NLRA.
    Employee participation is vital to a safe work environment. 
But giving management the right to dominate employee 
organizations is not conducive to employee participation or 
genuine partnership with management. As the NLRB and the courts 
recognized in the 1930s and reinforced in the 1990s, the 
prohibition of employer-dominated organizations is essential to 
the NLRA's purpose.
    Section 3 is yet another example of a solution to a 
nonexistent problem. There is no evidence that section 8(a)(2) 
has prevented employees from participating in meaningful 
employee involvement mechanisms. To the contrary--more than 
three-quarters of American employers, and over 90 percent of 
the very largest firms, already utilize such programs. All 
forms of employee participation that do not involve management 
domination or interference are already legal. And at least 11 
States, including Connecticut, Minnesota, New Hampshire, and 
Washington, have laws requiring employers to establish joint 
labor-management committees with employee representatives 
chosen by the employees themselves. The General Counsel of the 
National Labor Relations Board has made clear in an advice 
memorandum that establishing a safety committee to comply with 
such a state law is not a per se violation of section 8(a)(2).
    The Majority claims to ``complement what the Clinton 
administration had in mind whenit stated that employer 
commitment and meaningful employee participation and involvement in 
safety and health is a key ingredient in effective programs.'' But the 
Clinton Administration has promised to veto this legislation, in large 
measure because it undermines meaningful employee participation. In 
light of this, the Majority's assertion that this bill was ``primarily 
derived from the thoughts, suggestions and good ideas of employees, 
employee representatives, employers and certified safety and health 
professionals'' rings hollow, indeed. Employees, employee 
representatives and many other advised the bill's proponents from the 
very start that inclusion of a mini-TEAM Act would doom the 
legislation. The Administration's veto letter underscored this. Yet 
this provision appeared in every version of this bill, and remains--
unchanged--in the amendment adopted as a substitute by the Majority at 
the markup. Evidently even the bill's proponents do not believe it can 
become law.

Inspection procedures and quotas

    Section 8 of the bill would allow the Secretary to 
investigate a valid employee complaint by contacting the 
employer by telephone or fax, instead of conducting an onsite 
inspection. The right of a worker or worker representative to 
request and receive an OSHA inspection to investigate serious 
workplace hazards is one of the cornerstones of the 1970 OSH 
Act. This and the other provisions of the Act that mandate 
employee participation in OSHA inspections were adopted because 
it was recognized that workers could assist in the 
identification of hazards and to ensure that workers were aware 
of the content and results of inspections. (Legislative History 
of the Occupational Safety and Health Act of 1970, pp. 151-52). 
Section 8 would nullify this important worker protection.
    The Majority contends this provision is justified because 
OSHA has limited resources. Further, the Majority believes that 
the Secretary should have full discretion to determine the 
appropriate response to formal complaints requesting an 
inspection. Such unlimited discretion is unnecessary and 
unwarranted.
    The Majority asserts that ``OSHA is required to respond to 
every formal, written compliant with an onsite inspection.'' 
This is false. In fact, Section 8(f)(1) of the OSH Act requires 
the Secretary to conduct an onsite inspection where the 
Secretary determines that there are reasonable grounds to 
believe that a violation of a safety or health standard exists 
that threatens physical harm, or that an imminent danger 
exists. These inspections are to be carried out ``as soon as 
practicable,'' But according to the Legislative History, in 
scheduling these inspections, the Secretary has the full 
discretion to ``take into account such factors as the degree of 
harmful potential involved in the condition described in the 
request and the urgency of competing demands for inspectors 
arising from other requests or regularly scheduled 
inspections.'' (Legislative History at p. 152).
    Section 8 of the bill also would require employees 
submitting written complaints to state both whether the alleged 
violation has been brought to the employer's attention, and 
whether the employer has refused to remove the hazard. The 
section also limits the scope of an OSHA inspection in response 
to a complaint: OSHA may investigate for the limited purpose of 
determining whether the violation alleged in the complaint 
exists, and may expand the scope of the inspection only in 
response to health and safety violations that are observed by 
the inspector. This section further provides that OSHA is not 
required to conduct inspections if ``a request for inspection 
was made for reasons other than the safety; and health of the 
employees of an employer.'' Each of these changes is 
disturbing.
    First, the provision dealing with employee notice will 
discourage workers from filing complaints. In current practice, 
OSHA typically asks employees whether they have alerted 
employers to the hazard in question, but the agency does not 
require workers to respond. Many employees are afraid of 
retaliation by their employers, and experience with anti-
discrimination complaints demonstrates that, in many cases, 
their fears are well-founded. Forty percent of the 
discrimination cases filed with OSHA have arisen from employees 
who were fired for bringing a safety or health violation to the 
attention of their employer. Establishing the requirements 
imposed by this bill--especially forcing employees to state 
``whether the employer has refused to take action'' to correct 
the hazard--could easily be misunderstood as requiring 
employees to alert their employers as a prerequisite to filing 
a complaint. Thus, this provision would have a chilling effect 
on the filing of worker complaints. Workers' safety would not 
be improved.
    Also deeply troubling is the bill's prohibition on 
inspectors' expanding the scope of an inspection beyond the 
issues raised in the compliant, or conditions personally 
observed. This provision would significantly impair OSHA's 
power to discover and correct violations. For example, OSHA 
responded in January 1995 to a compliant at Glacier Vandervill, 
a manufacturer located near Columbus, Ohio. The compliant 
charged that employees exposed to lead were not receiving blood 
lead level evaluations as required by OSHA's lead standard. 
When OSHA inspectors 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 expanded the investigation to 
cover the entire facitly. 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 space, fall protection violations, and deficiencies in 
the lockout/tagout program.
    Under section 8 of the bill, the OSHA inspector could only 
have considered and acted upon the blood level lead problems 
recorded in the injury/illness logs. Although the amputations 
and crushing injuries were also recorded in the logs, they fell 
outside the scope of the complaint and were not personally 
observed by the inspector. Accordingly, OSHA would have been 
precluded from protecting workers from these other substantial 
hazards. In this respect, too, the bill fails to improve safety 
on the job.
    Finally, section 8 would permit OSHA to refuse to inspect a 
worksite about which a complaint was lodged, if the agency 
determined that the complaint was made for reasons otherthan 
safety and health. This exception applies even where the workers in 
question are at substantial risk. But OSHA's decision whether to 
inspect following a formal complaint should be based on the likelihood 
that employees are at risk--not on the motivation of the complainant. 
Where workers face substantial hazards, the statute rightfully compels 
OSHA to take action to protect them. Further, it would be very 
difficult for OSHA to determine a complainant's motivation. This 
exercise would consume scarce agency resources and delay inspections. 
The Majority presented no evidence that the resulting delay and denial 
of inspections would improve occupational safety and health. For this 
reason, too, the Minority opposes this provision.

Reduced penalties for paperwork violations

    Section 10 of the bill eliminates penalties for posting or 
paperwork violations, unless the violations are for 
``fraudulent reporting requirement deficiencies'' or are 
willful, repeat or failure to abate violations. By including 
this provision, the Majority ignores the substantial reductions 
in paperwork violations unrelated to safety and health that 
OSHA has already implemented. Further, the provision sweeps far 
too broadly, and would have a seriously detrimental effect on 
the health and safety of employees and the public.
    OSHA continues to take steps to limit citations and 
penalties for paperwork violations unrelated to safety and 
health. Citations for the most common paperwork violations 
declined 75 percent from 1992 to 1997. OSHA's compliance 
officers no longer cite for violations of minor paperwork 
requirement; instead, they advise and educate the employer. For 
example, for many years OSHA issued thousands of citations 
annually for failing to put up the required OSHA poster. Now, 
OSHA instead gives employers a poster and asks them to put it 
up. The number of poster violations is now at or near zero. 
Similarly, if there are no injuries or illnesses to record, 
OSHA no longer cites an employer for failing to keep a signed 
injury log.
    Far from applauding these ``cooperative'' efforts, the 
Majority views OSHA record-keeping and posting requirements as 
forcing ``good faith employers [to] spend additional time and 
money on paperwork rather than safety.'' The Majority thus 
refuses to acknowledge that OSHA's record-keeping and posting 
requirements are not trivial matters. For example, OSHA 
requires employers to post a notice when asbestos is being 
removed from a building. The notice says: ``DANGER. ASBESTOS. 
CANCER AND LUNG DISEASE HAZARD. AUTHORIZED PERSONNEL ONLY. 
RESPIRATORS AND PROTECTIVE CLOTHING ARE REQUIRED IN THIS 
AREA.'' If an employer fails to post this notice, or similar 
notices regarding other deadly substances, employees and the 
public could be exposed unwittingly to carcinogens and other 
toxins. The Majority offers no justification for changing the 
law to make such exposures more likely.
    Other ``paperwork'' mandated by the statute requires 
employers to maintain accurate injury/illness logs. Without 
accurate data, OSHA could not accurately measure the nature of 
workplace inspections. Nor could the agency know where to 
target its inspections, or evaluate the effectiveness of its 
interventions. Still other important ``paperwork'' requirements 
significantly and directly protect employees from serious 
injury or illness. For example, a certain amount of paperwork 
is involved in OSHA's worker right-to-know program. This aspect 
of the Hazard Communication Standard is critically important. 
If employees do not know that they are exposed to a hazardous 
chemical substance, which may not be regulated by a specific 
OSHA standard, they may be at serious risk of illness or even 
death.
    Section 10 will eradicate the effectiveness of many simple, 
low-cost mechanisms to improve workers' safety. It would 
override common-sense reforms that OSHA has already instituted 
in this area. The provision is dangerous and unnecessary, and 
the Minority opposes its enactment.

Additional penalty reductions for employer ``good faith''

    Section 11 of the legislation requires the Occupational 
Safety and Health Review Commission to consider certain factors 
in assessing the appropriateness of penalties under the OSH 
Act. Under current law, the Commission may consider several 
factors--such as company size, seriousness of the violation, 
history of violations and employer good faith--to determine the 
appropriate penalty.
    The bill would add new factors to this list, which would 
inevitably reduce the OSH Act's deterrent effect. The section 
would essentially redefine ``good faith,'' so that an employer 
who knows of an unsafe condition and waits until it is 
discovered during an inspection could very well be considered 
to have acted in ``good faith.'' This is not good faith, and 
such employers should not be entitled to a reduction in their 
penalty--yet this provision could permit just such a result.
    OSHA penalties are designed to act as a deterrent force, in 
hopes that employers fix problems long before, not after, they 
are discovered by an inspector. This principle has long been 
acknowledged by the Commission, the courts and Congress, which 
specifically recognized that in the Omnibus Budget Act of 1990 
when penalties were increased seven-fold.
    OSHA is continually researching methods of developing fair 
penalty reductions, while maintaining a credible system of 
deterrents that encourages preventive actions by employers. For 
example, OSHA is now studying a plan that would give major 
penalty reductions to employers that install and maintain an 
effective health and safety program.
    Section 11 will undermine OSHA's ongoing efforts to assess 
tough but fair penalties that will serve as effective 
deterrents. Further, like so many other sections of the bill, 
in this provision the Majority tries to fix a problem that does 
not exist--here, ``that good faith compliance efforts fail to 
score an employer any points whatsoever by OSHA.'' But the 
Majority admits elsewhere in the report that ``The current OSH 
Act authorizes the [OSHA Review] Commission to consider the 
following factors: * * * the good faith of the employer, and 
the history of previous violations.'' As the Majority knows 
full well, OSHA rewardsgenuine employer good faith by reducing 
penalty assessments as much as 60 percent, even for serious violations, 
in addition to other reductions given based on the size of the employer 
and its history of previous violations. In short, good faith employers 
already get substantial reductions for their conduct; further cuts are 
unwarranted.

Technical Assistance Program

    Section 12 of the bill requires cooperative agreements 
between OSHA and the States to provide consultation programs. 
This section purports to codify OSHA's current consultation 
policy. It requires a pilot program to be established in three 
states for up to two years, to experiment with a fee-for-
service system. The 50 State agencies that already administer 
the consultation program have expressed serious reservations 
about charging fees in the consultation program.
    The practical effect of a fee-for-service consultation 
service is obvious: those who could pay would be visited first. 
This undermines the Majority's stated desire to direct this 
service to small employers or very dangerous worksites that 
cannot afford to hire other consultants.
    Section 12 also requires that OSHA spend at least 15 
percent of annual appropriations on education, consultation and 
outreach efforts. This provision is unnecessary. For many 
years, OSHA has spent more than 15 percent of its budget on 
those areas. However, the agency needs to have maximum 
flexibility to address issues in the fast-changing workplace. A 
decade ago, a string of explosions and fires at chemical plants 
in this country, as well as the example of the Union Carbide 
tragedy in Bhopal, India in December, 1984 that killed more 
than 1,600 people prompted OSHA to move funds quickly toward 
standard-setting and greater enforcement in the chemical 
industry. Setting arbitrary limits on what the agency can spend 
for various programs would prevent OSHA from taking swift and 
decisive action in response to a similar specific threat in the 
future.

Voluntary Protection Program

    Section 13 attempts to codify OSHA's Voluntary Protection 
Program, by requiring OSHA to establish cooperative agreements 
with employers, who would create and maintain comprehensive 
safety and health management systems. The bill requires 
enhanced OSHA efforts to include small businesses in the 
program. Participation would result in exemptions from 
inspections and certain paperwork requirements.
    The VPP has traditionally been, and should remain, a 
program for work sites, not employers. Although section 13 
makes some references to ``the worksite,'' this vital mainstay 
of the program must be emphasized. Accordingly, the Minority 
does not support this provision as drafted.

Prevention of alcohol and substance abuse

    Section 14 authorizes OSHA to test workers and mangers for 
drugs and alcohol after a work-related death or serious injury. 
It also allows employers to institute their own testing 
programs within State and Federal guidelines.
    The Minority supports measures that contribute to a drug-
free work environment. Reasonable drug testing programs can be 
appropriate for certain workplace environments, such as those 
involving safety-sensitive duties. But employees' privacy 
rights must be protected adequately. This provision would 
divert scarce OSHA resources to oversee drug and alcohol 
programs--an area in which the agency has no expertise. 
Further, the Majority overlooks the fact that employers are 
already free to institute substance abuse testing programs, as 
long as they comply with applicable Federal and State laws. 
Inserting OSHA into this process seems unnecessary and unwise.

Consultation alternatives

    Section 15 provides that OSHA should be allowed to issue 
warnings, rather than citations, to violators when the 
violation poses no significant safety hazard or where the 
employer has acted in good faith to abate the violation 
promptly.
    The OSH Act says the agency ``shall'' issue citations, but 
this provision would change the rule to ``may.'' The impact of 
this change is unclear. Federal case law demonstrates that OSHA 
already has a high degree of prosecutorial discretion and has 
the power to establish programs such as Maine 200 in which it 
does not issue a citation for every violation it discovers. So 
this provision may be simply unnecessary.
    But the section could also undermine OSHA's authority. Some 
employers could misunderstand the new language as a limitation 
on OSHA's authority to issue citations. Especially troubling is 
the language permitting the issuance of a warning in lieu of a 
citation for violations that the employer ``acts promptly to 
abate.'' Although this provision gives OSHA discretion to issue 
citations in such circumstances, the provision may encourage 
employers to let a violation go uncorrected until it is 
discovered by an OSHA inspection. The provision thus could 
undermine the preventive purpose and the deterrent effect of 
OSHA's enforcement program.
    Employers should always be encouraged to abate hazards 
promptly, but the appropriate mechanism should be through 
reducing penalties--not eliminating citations altogether. 
Otherwise, employers who make good faith efforts to protect 
employees before an OSHA inspector arrives on the doorstep will 
be treated the same as negligent employers who ignored their 
employees' safety until the inspection.

                         DEMOCRATIC AMENDMENTS

               genuine labor-management safety committees

    Senator Murray offered an amendment to modify section 3 of 
the bill regarding employee participation programs. The 
amendment would have struck section 3 and substituted language 
mandating genuine employee involvement in safety committees.
    As discussed above, section 3 conflicts head-on with 
section 8(a)(2) of the National Labor Relations Act, by 
permitting employer-dominated safety committees that purport to 
represent employees. It is a mini-TEAM Act, and the 
Administration has promised to veto it.
    Senator Murray's amendment would have substituted mandatory 
safety and health committees, with genuine representation and 
participation by employees required. The committees would be 
made up of an equal number of employee and employer 
representatives. In unionized settings, employee 
representatives would be designated by the employees' 
bargaining representative; otherwise, they would be elected by 
employees. The joint committees could review the employer's 
safety and health program, conduct inspections, and make 
advisory recommendations to the employer. The proposal drew on 
statutes such as the Washington State law, which mandates joint 
safety and health teams. That law, however, requires that ``the 
number of employer-selected members shall not exceed the number 
of employee-elected members.''
    The amendment was defeated by a vote of 7-11.

                   enhance whistleblower protections

    Senator Wellstone offered an amendment that would have 
strengthened and expanded anti-discrimination protections for 
employees who report workplace health and safety hazards. It 
was rejected by a vote of 8-9, with all 8 Democrats voting 
``aye,'' 9 Republicans voting ``no,'' and one Republican voting 
``present.''
    Employees who ``blow the whistle'' on employers by 
reporting unlawful or hazardous workplace activities need 
protection. Instead, too often they are discharged, demoted, 
harassed or intimidated. Some are afraid to report unlawful 
activities because of the threat of reprisal. A 1997 report by 
the Department of Labor Inspector General documents the lack of 
protection that workers have when they speak out about health 
and safety on the job. Among that report's key findings are 
that: workers who complain directly to their employers first--
rather than to OSHA--were particularly vulnerable to employer 
reprisals; workers employed by small firms were also especially 
vulnerable; and employer reprisals were severe--discharge was 
the most frequent act of discrimination by employers against 
employees who reported safety violations.
    Senator Wellstone's amendment was designed to provide more 
uniform treatment for whistleblowers under federal law. The 
amendment would have strengthened and expanded existing anti-
discrimination protections for employees who report possible 
workplace health and safety violations. It clarifies that the 
OSH Act prohibits employers from discharging or otherwise 
retaliating against an employee because the employee (1) has 
reported an unsafe condition or (2) after unsuccessfully 
seeking corrective action from the employer has refused to 
perform duties that he or she reasonably believes would expose 
employees to a bona fide danger of injury or serious health 
impairment.
    Although the underlying bill contained no protections for 
whistleblowers, and in fact could force employees to risk 
retaliation by notifying their employer before filing a 
complaint with OSHA, the Majority refused to accept the 
amendment.

                          construction safety

    Although the OSH Act originally made a pledge to protect 
America's worker, S. 1237 fails to safeguard those workers and, 
in fact, weakens OSHA. Most specifically, the bill fails the 
construction industry. According to the Bureau of Labor 
Statistics, there were over 1,000 deaths in the construction 
industry in 1996. Although construction workers comprise only 6 
percent of the workforce, they account for 17 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 non-existent safety plans. OSHA, 
with its focus on single employers, is simply unable to address 
fully these unique problems.
    In an effort to deal with this problem, Senator Dodd 
offered an amendment to provide specific protections for 
construction workers, by requiring cooperation among 
contractors on each site to assure safer working conditions, 
and by establishing an Office of Construction 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, the 
Majority indicated that they place no special priority on the 
safety of the Nation's construction workers.

           reed amendment modifying third party audit program

    Senator Reed offered an amendment modifying the bill's 
third party audit program. The amendment was rejected on a 
straight party line vote of 8-10.
    The amendment would have made significant improvements in 
the ``consultation'' program at the heart of this bill. 
Specifically, the amendment would have made employers found to 
be in compliance with the OSH Act by a third party inspector 
eligible for up to a 50 percent reduction in penalties. Instead 
of abolishing all penalties for violations where an employer 
had hired a safety ``consultant,'' the amendment would give 
OSHA discretion to reduce those penalties. This would have 
improved the bill substantially, but the Majority refused to 
consider it. The amendment would also have made records 
surrounding third party inspections accessible to OSHA and 
other interested parties, as well as admissible in court. For 
the protection of employees, hazards found by inspectors would 
be posted until the danger was abated. Due to conflict of 
interest concerns, individuals with current contractual 
relationships with an employer would be ineligible to become 
3rd party inspectors. The Health and Safety Advisory Board may 
review submissions of third party inspectors and suggest safety 
programs which should augment, replace, or coexist with current 
regulations to the Secretary. Finally, the amendment authorized 
the appropriation of such funds as necessary to carry out the 
new regulations.
    The Majority's outright refusal to consider any of the 
modifications contained in this amendment demonstrates that 
immunizing employers from violations is central to the mission 
of this bill. Genuine cooperation would have been enhanced by 
this amendment, yet the Majority rejected it out of hand.

                  reed amendment regarding small farms

    A rider currently attached to the Occupational Safety and 
Health Administration allocation in the Labor, Health and Human 
Services, and Education Appropriations bill prevents the Agency 
from obligating or expending funds to prescribe, issue, 
administer, or enforce any standard, rule, regulation, or order 
under the OSH Act of 1970, when it is applicable to a farming 
operation that does not have a temporary labor camp and that 
has 10 or fewer employees.
    The Minority recognizes the importance that many Senators 
place on protecting smaller farms and businesses from undue 
regulation. The Minority also recognizes that the small farm 
rider has been part of the Department of Labor appropriation 
since 1977. However, agriculture remains the second most deadly 
occupational industry in country, and more than 500 workers 
died while working in this industry in 1995.
    In response to these statistics and a particularly 
compelling accident in the State of Rhode Island, which claimed 
the life of a young high school student, Senator Reed offered 
an amendment to allow OSHA to spend funds to conduct an 
inspection or investigation in response to a fatal accident at 
a small farming operation and require the Agency to issue a 
report on the accident within 90 days.
    In deference to the concerns expressed by some Senators, 
the amendment would have allowed the other limitations of the 
appropriations rider to stand, including the ban on citations. 
However, the Minority opposed limiting OSHA's existing 
authority, as some Senators proposed.
    The Minority believes it is critical to the safety of farm 
workers and in the business interests of farm owners that OSHA 
be able to investigate and issue a report in cases of fatal 
accidents at a worksite. Moreover, the Minority feels that it 
is important for a family to have the answers to important 
questions about the death of a loved one. Often the only 
consolation which is derived from such a loss is the knowledge 
that others will learn from the tragedy and prevent its 
recurrence.
    The amendment was rejected along strict party lines, by a 
vote of 8-10. The Minority hopes that the issue will be 
revisited when this legislation is considered on the floor or 
in the next Labor, Health and Human Services, and Education 
Appropriations bill.

              reed amendment to enhance criminal penalties

    Many of the provisions of S. 1237 are premised on the 
notion that OSHA has been too stringent in its enforcement of 
the OSH Act, and that employers need relief from excessive and 
excessively costly penalties. Nothing could be further from the 
truth. By statute, the maximum penalty for a serious 
violation--one that has a substantial probability of causing 
death or serious physical harm--is $7,000. Nationwide, the 
average penalty for such violations was only $912 in 1996. And, 
OSHA has always had and used the authority granted in the Act 
to reduce penalties based on the size of the employer, the 
gravity of the offense, the employer's good faith, and its 
history of previous violations. OSHA already reduces penalties 
15 percent or 25 percent for a safety and health program; up to 
60 percent based on size; and 10 percent for a good history.
    But from the point of view of employees who want the 
government to discourage and deter employer conduct that could 
kill or seriously injure them, OSHA's penalties are generally 
too low--not too high. To give just one example, on March 24, 
1997 a 31-year-old worker named Diomedes Robles was killed when 
he was pulled into an unguarded machine operating on a 
cranberry bog in Hanson, Massachusetts. His clothing became 
tangled in the machine because the employer had failed to 
install a screen around the machine's working parts. OSHA 
proposed a penalty of $10,500 for the violation. This penalty 
was ultimately reduced to $7,785. In short, this employer paid 
less than $8,000 for a violation that killed a husband and 
stepfather of three. The employer could have prevented this 
tragedy by installing a simple screening device. In light of 
stories such as this, it is hard to believe that anyone 
advocates reducing current penalties--but that is just what 
this bill does.
    Senator Reed offered an amendment to strengthen the current 
penalty structure. Theamendment would have increased the 
criminal penalties in OSHA by making acts which are now misdemeanors, 
i.e., willful violations which cause the death of an employee, a 
felony, carrying a penalty of up to 10 years in jail and a $250,000 
fine for an individual or $500,000 for an organization. Willful 
violations which cause the maiming or serious bodily injury of an 
employee, not now a criminal violation, would be classified as a 
misdemeanor, warranting 6 months in jail and a $10,000 fine.
    Notwithstanding the obvious shortcoming in OSHA's current 
penalty structure, the Majority refused to accept this 
amendment. It was defeated along strict party lines, by a vote 
of 8-10.

                               Conclusion

    S. 1237 is bad legislation. For the most part, it attempts 
to fix problems that do not exist. Where it addresses real 
problems, its solutions are ineffective or make matters worse. 
It is based on outdated and unreliable data, and flows from a 
defective legislative process. Hearings on this bill would have 
exposed the fatal flaws so that all could see. No doubt the 
bill's supporters abhor on-the-job illnesses, injuries and 
deaths every bit as vehemently as do the bill's opponents. 
Unfortunately, this bill will at best make no improvements in 
occupational safety and health. At worst, more workers will be 
killed and maimed if this bill should pass.
    This bill is far from acceptable. The Administration is 
right to say that it will veto this legislation, and we join 
fully in that opposition. The bill does nothing to improve 
safety and health conditions on the job, and it does many 
things that would undermine advances that have taken decades to 
achieve. For these reasons, the Minority opposes this 
legislation.

                                   Edward M. Kennedy.
                                   Tom Harkin.
                                   Christopher J. Dodd.
                                   Barbara A. Mikulski.
                                   Jeff Bingaman.
                                   Patty Murray.
                                   Paul Wellstone.
                                   Jack Reed.

                X. ADDITIONAL VIEWS OF SENATOR BINGAMAN

    I join with my colleagues in opposing S. 1237 and concur 
with the minority views expressed in this report with the 
exception of those relating to section 3 which allows for 
cooperative employer/employee committees that address health 
and safety issues. I have seen firsthand how good employers use 
EI programs to improve the everyday lives of their employees, 
especially in the areas of health and safety, and I have heard 
repeated calls from both employers and employees for Congress 
to allow for greater flexibility in this area.
    I do not concur with the view that the provisions allows 
for the establishment of sham or company unions. Similarly, I 
disagree that there is no evidence that Section 8(a)(2) of the 
NLRA is preventing employers and employees from participating 
in meaningful employee involvement (EI) programs whether in the 
areas of safety and health or others. I also disagree with some 
of the other statements in the minority views relating to 
Section 8(a)(2) and AS. 295, the TEAM Act, but believe that 
discussion of those should be left to debate on the TEAM Act 
and not done in the context of S. 1237.

                          U.S. Department of Labor,
                                        Secretary of Labor,
                                  Washington, DC, October 22, 1997.
Hon. James Jeffords,
Chairman, Committee on Labor and Human Resources, U.S. Senate, 
        Washington, DC.
    Dear Chairman Jeffords: I understand that the Committee on 
Labor and Human Resources has scheduled a mark-up session for 
October 22, 1997 on S. 1237, the ``Safety Advancement for 
Employees Act of 1997.'' I am writing to inform you that the 
Administration is opposed to the enactment of this legislation 
because it would compromise workplace safety and health.
    I recognize your desire to improve the statutory framework 
for protecting America's working men and women. At the same 
time I am convinced that S. 1237 would not advance that goal. 
In addition, I am concerned that S. 1237 fails to recognize the 
significant strides OSHA has made in reinventing itself in 
recent years. For example, OSHA has developed award-winning 
initiatives based on Maine 200, a concept that will soon be 
expanded nationwide. OSHA has updated its standard-setting 
process to ensure that its protective standards are written in 
plain language. In addition, OSHA is engaged in a series of 
cooperative efforts with employers that are showing real 
results in terms of improved worker safety and health. In 
short, the legislation proposes to change an OSHA that no 
longer exists.
    I am disappointed that the Committee has chosen to consider 
S. 1237--a bill with significant new proposals--without a 
hearing and thorough discussion. The sole OSHA-related hearing 
conducted by Chairman Frist of the Subcommittee on Public 
Health and Safety on July 10, 1997 was not a legislative 
hearing and was held before S. 1237 was even introduced. A 
panel of Senators discussed legislative proposals as did some 
of the other witnesses, but the session was called as an 
oversight hearing, and the testimony of the representative of 
OSHA was requested and presented as oversight testimony. 
Fundamental and controversial changes in the Nation's safety 
and health laws should not be undertaken without thorough 
public hearings.
    In our view S. 1237 could present unacceptable dangers to 
the health and safety of American workers. Provisions have been 
included in the name of reform and reinvention of OSHA which 
would in fact undermine OSHA's self-improvements, while also 
eliminating significant protections and safeguards.
    The Department will provide the Committee with a full 
analysis of the legislation within one week. In the meantime, 
some of the provisions that are particularly troublesome 
include:
          The potential for employer-dominated health and 
        safety committees for which an employer would be 
        permitted to unilaterally determine who would serve on 
        the committee as the representatives of the employees;
          A defective third-party certification program which 
        provides for a two-year exemption from OSHA civil money 
        penalties, a provision the Administration has never 
        proposed--even in the case of violations that have 
        caused death or serious injuries, thereby eliminating 
        the recognized deterrent effect of such penalties;
          A newly-created evidentiary privilege for employer 
        self-audit reports that would adversely affect OSHA 
        enforcement, by preventing the use of otherwise 
        relevant information in an adjudicatory proceeding;
          Required National Academy of Sciences peer review 
        panels for OSHA standards, adding a redundant and 
        unnecessary level of review, thereby delaying the 
        promulgation of safety and health protections;
          Repeal of a core premise of the OSH Act: that workers 
        who file complaints have a right to an inspection if 
        their working conditions pose a threat of physical harm 
        (S. 1237 changes the requirement for a mandatory 
        inspection to a discretionary one);
          Provisions that authorize OSHA to impose fines on 
        individual employees;
          New procedures which would chill employees' 
        willingness to file complaints because of fears of 
        employer retaliation; and
          Elimination of the statutory designation of the 
        position of Assistance Secretary for Occupational 
        Safety and Health.
    These provisions, individually and collectively, would 
greatly diminish the ability of the Occupational Safety and 
Health Administration to administer and enforce the OSH Act. 
The bill would undermine OSHA's efforts to achieve the Act's 
stated purpose: ``to assure so far as possible every working 
man and woman in the Nation safe and healthful working 
conditions and to preserve our human resources.'' S. 1237 would 
result in an increase in the risks to the lives and well-being 
of our Nation's workers and their families. This legislation, 
drafted in the name of reform and retooling, is a step 
backward, and, accordingly, the Administration opposes its 
enactment.
    Mr. Chairman, I must respectfully inform you that if S. 
1237 is passed by the Congress and presented to the President, 
I will recommend that he veto the legislation.
    The Office of Management and Budget advises that there is 
no objection to the submission of this report and that 
enactment of S. 1237 would not be in accord with the 
Administration's program.
            Sincerely,
                                                  Alexis M. Herman.

                      XI. 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):

                      TITLE 29, UNITED STATES CODE

          * * * * * * *

SEC. 651. CONGRESSIONAL STATEMENT OF FINDINGS AND DECLARATION OF 
                    PURPOSE AND POLICY.

    (a) * * *
          (13) by encouraging joint labor-management efforts to 
        reduce injuries and disease arising out of 
        employment[.] ; and
        (14) by increasing the joint cooperation of employers, 
        employees, and the Secretary of Labor in the effort to 
        ensure safe and healthful working conditions for 
        employees.
          * * * * * * *

SEC. 653. GEOGRAPHIC APPLICABILITY; JUDICIAL ENFORCEMENT; APPLICABILITY 
                    TO EXISTING STANDARDS; REPORT TO CONGRESS ON 
                    DUPLICATION AND COORDINATION OF FEDERAL LAWS; 
                    WORKMEN'S COMPENSATION LAW OR COMMON LAW OR 
                    STATUTORY RIGHTS, DUTIES, OR LIABILITIES OR 
                    EMPLOYERS AND EMPLOYEES UNAFFECTED.

    * * *
          * * * * * * *
    (c)(1) In order to further carry out the purpose of this 
Act to encourage employers and employees in their efforts to 
reduce occupational safety and health hazards, employers many 
establish employer and employee participation programs which 
exist for the sole purpose of addressing safe and healthful 
working conditions.
    (2) An entity created under a program described in 
paragraph (1) shall not constitute a labor organization for 
purposes of section 8(a)(2) of the National Labor Relations Act 
(29 U.S.C. 158(a)(2)) or a representative for purposes of 
sections 1 and 2 of the Railway Labor Act (45 U.S.C. 151 and 
151a).
    (3) Nothing in this subsection shall be construed to affect 
employer obligations under section 8(a)(5) of the National 
Labor Relations Act (29 U.S.C. 158(a)(5)) to deal with a 
certified or recognized employee representative with respect to 
health and safety matters to the extent otherwise required by 
law.
          * * * * * * *

SEC. 655. STANDARDS.

    (a) Promulgation by Secretary of national consensus 
standards and established Federal standards; time for 
promulgation; conflicting standards.--
          * * * * * * *
          [(4) Within] (4)(A) Within sixty days after the 
        expiration of the period provided for the submission of 
        written data or comments under paragraph (2), or within 
        sixty days after the completion of any hearing held 
        under paragraph (3), the Secretary shall issue a rule 
        promulgating, modifying, or revoking an occupational 
        safety or health standard or make a determination that 
        a rule should not be issued. Such a rule may contain a 
        provision delaying its effective date for such period 
        (not in excess of ninety days) as the Secretary 
        determines may be necessary to insure that affected 
        employers and employees, will be informed of the 
        existence of the standard and of its terms and that 
        employers affected are given an opportunity to 
        familiarize themselves and their employees with the 
        existence of the requirements of the standard.
          (B)(i) Prior to issuing a final standard under this 
        paragraph, the Secretary shall submit the draft final 
        standard and a copy of the administrative record to the 
        National Academy of Sciences for review in accordance 
        with clause (ii).
          (ii)(I) The National Academy of Sciences shall 
        appoint an independent Scientific Review Committee.
          (II) The Scientific Review Committee shall conduct an 
        independent review of the draft final standard and the 
        scientific literature and make written recommendations 
        with respect to the draft final standard to the 
        Secretary, including recommendations relating to the 
        appropriateness and adequacy of the scientific data, 
        scientific methodology, and scientific conclusions, 
        adopted by the Secretary.
          (III) If the Secretary decides to modify the draft 
        final standard in response to the recommendations 
        provided by the Scientific Review Committee, the 
        Scientific Review Committee shall be given an 
        opportunity to review and comment on the modifications 
        before the final standard is issued.
          (IV) The recommendations of the Scientific Review 
        Committee shall be published with the final standard in 
        the Federal Register.
          * * * * * * *

SEC. 656. ADMINISTRATION.

    (a) National Advisory Committee on Occupational Safety and 
Health; establishment; membership; appointment; Chairman; 
functions; meetings; compensation; secretarial and clerical 
personnel.--
          * * * * * * *
    (d)(1) Not later than 3 months after the date of enactment 
of this subsection, the Secretary shall establish an advisory 
committee (pursuant to the Federal Advisory Committee Act (5 
U.S.C. App)) to carry out the duties described in paragraph 
(3).
    (2) The advisory committee shall be composed of--
          (A) 3 members who are employees;
          (B) 3 members who are employers;
          (C) 2 members who are members of the general public; 
        and
          (D) 1 member who is a State official from a State 
        plan State.
Each member of the advisory committee shall have expertise in 
workplace safety and health as demonstrated by the educational 
background of the member.
    (3) The advisory committee shall advise and make 
recommendations to the Secretary with respect to the 
establishment and implementation of a consultation services 
program under section 657A.

 SEC. 657. INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING.

    (a) Authority of Secretary to enter, inspect, and 
investigate places of employment; time and manner.--
          * * * * * * *
    (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 shall state whether 
        the alleged violation has been brought to the attention 
        of the employer and if so, whether the employer has 
        refused to take any action to correct the alleged 
        violation, 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. The inspection shall be 
        conducted for the limited purpose of determining 
        whether the violation exists. During such an 
        inspection, the Secretary may take appropriate actions 
        with respect to health and safety violations that are 
        not within the scope of the inspection and that are 
        observed by the Secretary or an authorized 
        representative of the Secretary during the inspection. 
        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, and, upon 
        request by the employee or employee representative, 
        shall provide a written statement of the reasons for 
        the determination of the Secretary.
          * * * * * * *
          (3) The Secretary or an authorized representative of 
        the Secretary may, as a method of investigating an 
        alleged violation or danger under this subsection, 
        attempt, if feasible, to contact an employer by 
        telephone, facsimile, or other appropriate methods to 
        determine whether--
                  (A) the employer has taken corrective actions 
                with respect to the alleged violation or 
                danger; or
                  (B) there are reasonable grounds to believe 
                that a hazard exists.
          (4) The Secretary is not required to conduct an 
        inspection under this subsection if the Secretary 
        determines that a request for an inspection was made 
        for reasons other than the safety and health of the 
        employees of an employer or that the employees of an 
        employer are not at risk.
          * * * * * * *
    (h) Any Federal employee responsible for enforcing this Act 
shall (not later than 2 years after the date of enactment of 
this subsection or 2 years after the initial employment of the 
employee) meet the eligibility requirements prescribed under 
subsection (a)(2) of section 657A.
    (i) The Secretary shall ensure that any Federal employee 
responsible for enforcing this Act who carries out inspections 
or investigations under this section, receive professional 
education and training at least every 5 years as prescribed by 
the Secretary.
          * * * * * * *

SEC. 657A. THIRD PARTY CONSULTATION SERVICES PROGRAM.

    (a) Establishment of Program.--
          (1) In general.--Not later than 18 months after the 
        date of enactment of this section, the Secretary shall 
        establish and implement, by regulation, a program that 
        qualifies individuals to provide consultation services 
        to employers to assist employers in the identification 
        and correction of safety and health hazards in the 
        workplaces of employers.
          (2) Eligibility.--Each of the following individuals 
        shall be eligible to be qualified under the program:
                  (A) An individual licensed by a State 
                authority as a physician, industrial hygienist, 
                professional engineer, safety engineer, safety 
                professional, or registered nurse.
                  (B) An individual who has been employed as an 
                inspector for a State plan State or as a 
                Federal occupational safety and health 
                inspector for not less than a 5-year period.
          (C) An individual qualified in an occupational health 
        or safety field by an organization whose program has 
        been accredited by a nationally recognized private 
        accreditation organization or by the Secretary.
                  (D) An individual who has not less than 10 
                years expertise in workplace safety and health.
                  (E) Other individuals determined to be 
                qualified by the Secretary.
          (3) Geographical scope of consultation services.--An 
        individual qualified under the program may provide 
        consultation services in any State.
    (b) Safety and Health Registry.--The Secretary shall 
develop and maintain a registry that includes all individuals 
that are qualified under the program to provide the 
consultation services described in subsection (a) an shall 
publish and make such registry readily available to the general 
public.
    (C) Disciplinary Actions.--
          (1) In general.--The Secretary may revoke the status 
        of an individual qualified under subsection (a) if the 
        Secretary determines that the individual--
                  (A) has failed to meet the requirements of 
                the program; or
                  (B) has committed malfeasance, gross 
                negligence, or fraud in connection with any 
                consultation services provided by the qualified 
                individual.
    (d) Consultation Services.--
          (1) Scope of consultation services.--
                  (A) In general.--The consultation services 
                described in subsection (a), and provided by an 
                individual qualified under the program, shall 
                include an evaluation of the workplace of an 
                employer to identify any violations of this act 
                and appropriate corrective measures to address 
                the violations that are identified.
                  (B) Non-fixed work sites.--With respect to 
                the employees of an employer who do not work at 
                a fixed site, the consultation services 
                described in subsection (a), and provided by an 
                individual qualified under the program, shall 
                include an evaluation of the safety and health 
                program of the employer to identify any 
                violations of this Act and appropriate 
                corrective measures to address the violations 
                that are identified.
          (2) Consultation report.--Not later than 30 business 
        days after an individual qualified under the program 
        completes the evaluations described in this subsection, 
        or on a date agreed on by the individual and the 
        employer, the individual shall prepare andsubmit a 
written report to the employer that includes an identification of any 
violations of this Act and appropriate corrective measures to address 
the violations that are identified.
          (3) Reinspection.--Not later than 90 days after an 
        individual qualified under the program submits a 
        written report to an employer under paragraph (2), or 
        on a date agreed on by the individual and the employer, 
        the individual shall reinspect the workplace of the 
        employer to verify that any occupational safety or 
        health violations identified in the report have been 
        corrected. If, after such reinspection, the individual 
        determines that the violations identified in the report 
        have been corrected or are being corrected pursuant to 
        a written plan described in this paragraph, the 
        individual shall provide the employer a declaration of 
        resolution for that workplace. The written plan must 
        identify the violation and the steps to be taken to 
        achieve abatement and, where necessary, how employees 
        will be protected from exposure to the violative 
        condition in the interim until abatement is complete. 
        Compliance with the written plan shall be verified by 
        progress reports or reinspection by the qualified 
        individual.
          (4) Guidelines.--The Secretary, in consultation with 
        an advisory committee established in section 656(d), 
        shall develop model guidelines for use in evaluating a 
        workplace under paragraph (1).
    (e) Access to Records.--Any records relating to 
consultation services (as described in subsection (a)) provided 
by an individual qualified under the program, or records, 
reports, or other information prepared in connection with 
safety and health inspections, audits, or reviews conducted by 
or for an employer and not required under this Act, shall not 
be admissible in a court of law or administrative proceeding or 
enforcement proceeding against the employer except that such 
records may be used as evidence for purposes of a disciplinary 
action under subsection (c).
    (f) Exemption.--
          (1) In general.--If an employer utilizes an 
        individual qualified under the program, to provide 
        consultation services described in subsection (a), and 
        receives a declaration of resolution under subsection 
        (d)(3), the employer shall be exempt from the 
        assessment of any civil penalty under section 17 for 
        the workplace covered by the declaration of resolution 
        for a period of 2 years after the date the employer 
        receives the declaration.
          (2) Exceptions.--Paragraph (1) shall not apply--
                  (A) if the employer involved has not made a 
                good faith effort to remain in compliance as 
                required under the declaration of resolution; 
                or
                  (B) to the extent that there has been a 
                fundamental change in the hazards of the 
                workplace.
    (g) Definition.--In this section, the term ``program'' 
means the program established by the Secretary under subsection 
(a).
          * * * * * * *

SEC. 658. CITATIONS.

    (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 654 of this title, of any 
standard, rule or order promulgated pursuant to section 655 of 
this title, or of any regulations prescribed pursuant to this 
chapter, 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 chapter, 
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.]
          (1) Nothing in this Act shall be construed as 
        prohibiting the Secretary or the authorized 
        representative of the Secretary from providing 
        technical or compliance assistance to an employer in 
        correcting a violation discovered during an inspection 
        or investigation under this Act with-out issuing a 
        citation.
          (2) Except as provided in paragraph (3), if, upon an 
        inspection or investigation, the Secretary or an 
        authorized representative of the Secretary believes 
        that an employer has violated a requirement of section 
        5, of any regulation, rule, or order promulgated 
        pursuant to section 6, or of any regulations prescribed 
        pursuant to this Act, the Secretary may with reasonable 
        promptness issue a citation to the employer. Each 
        citation shall be in writing and shall describe with 
        particularity the nature of a violation, including a 
        reference to the provision of the Act, regulation, 
        rule, or order alleged to have been violated. The 
        citation shall fix a reasonable time for the abatement 
        of the violation.
          (3) The Secretary or the authorized representative of 
        the Secretary--
                  (A) may issue a warning in lieu of a citation 
                with respect to a violation that has no 
                significant relationship to employee safety or 
                health; and
                  (B) may issue a warning in lieu of a citation 
                in cases in which an employer in good faith 
                acts promptly to abate a violation if the 
                violation is not a willful or repeated 
                violation.
          * * * * * * *
    (d) The Secretary shall not establish for any employee 
within the Occupational Safety and Health Administration 
(including any regional director, area director, supervisor or 
inspector) a quota with respect to the number of inspections 
conducted, the number of citations issued, or the amount of 
penalties collected, in accordance with this Act.
    (e) Not later than 12 months after the date of enactment of 
this subsection and annually thereafter, the Secretary shall 
report on the number of employers that are inspected under this 
Act and determined to be in compliance with the requirements 
prescribed under this Act.''
    (f)(1) No citation may be issued under subsection (a) to an 
employer unless the employer knew, or with the exercise of 
reasonable diligence, would have known, of the presence of an 
alleged violation.
    (2) No citation shall be issued under subsection (a) to an 
employer for an alleged violation of section 5, any standard, 
rule, or order promulgated pursuant to section 6, any other 
regulation promulgated under this Act, or any other 
occupational safety and health standard, if the employer 
demonstrates that--
          (A) The employees of the employer have been provided 
        with the proper training and equipment to prevent such 
        a violation;
          (B) work rules designed to prevent such a violation 
        have been established and adequately communicated to 
        the employees by the employer and the employer has 
        taken reasonable measures to discipline employees when 
        violations of the work rules have been discovered;
          (C) the failure of employees to observe work rules 
        led to the violation; and
          (D) reasonable measures have been taken by the 
        employer to discover any such violation.
    (g) A citation issued under subsection (a) to an employer 
who violates section 5, any standard, rule, or order 
promulgated pursuant to section 6, or any other regulation 
promulgated under this Act shall be vacated if such employer 
demonstrates that the employees of such employer were protected 
by alternative methods that are equally or more protective of 
the safety and health of the employees than the methods 
required by such standard, rule, order, or regulation in the 
factual circumstances underlying the citation.
    (h) Subsections (f) and (g) shall not be construed to 
eliminate or modify other defenses that may exist to any 
citation.
          * * * * * * *

SEC. 659A. EMPLOYEE RESPONSIBILITY.

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

SEC. 666. CIVIL AND CRIMINAL PENALTIES.

    (a) Willful or repeated violation.--
          * * * * * * *
    (i) Violation of posting requirements.--
    [Any employer who violates any of the posting requirements, 
as prescribed under the provisions of this chapter, shall be 
assessed a civil penalty of up to $7,000 for each violation.]
    (i) Any employer who violates any of the posting or 
paperwork requirements, other than fraudulent reporting 
requirement deficiencies, prescribed under this Act shall not 
be assessed a civil penalty for such a violation unless the 
Secretary determines that the employer has violated subsection 
(a) or (d) with respect to the posting or paperwork 
requirements.
    (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.]
    (j) The Commission shall have authority to assess all civil 
penalties under this section. In assessing a penalty under this 
section for a violation, the Commission shall give due 
consideration to the appropriateness of the penalty with 
respect to--
          (1) the size of an employer;
          (2) the number of employees exposed to the violation;
          (3) the likely severity of any injuries directly 
        resulting from the violation;
          (4) the probability that the violation could result 
        in injury or illness;
          (5) the good faith of an employer in correcting the 
        violation after the violation has been identified;
          (6) the history of previous violations by an 
        employer; and
          (7) whether the violation is the sole result of the 
        failure of an employer to meet a requirement under this 
        Act, or prescribed by regulation, with respect to the 
        posting of notices, the preparation or maintenance of 
        occupational safety and health records, or the 
        preparation, maintenance, or submission of any written 
        information.
          * * * * * * *

SEC. 670. TRAINING AND EMPLOYEE EDUCATION.

    (a) Authority of Secretary of Health and Human Services to 
conduct education and informational programs; consultations.--
          * * * * * * *
    (c) Authority of Secretary of Labor to establish and 
supervise education and training programs and consult and 
advise interested parties.--
    (1) The Secretary, in consultation with the Secretary of 
Health and Human Services, 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 chapter, 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.
    (B)(i) Except as provided in clause (ii), the Secretary 
shall reimburse a State that enters into a cooperative 
agreement under subparagraph (A) in an amount that equals 90 
percent of the costs incurred by the State for the provision of 
consultation services under such agreement.
    (ii) A State shall be reimbursed by the Secretary for 90 
percent of the costs incurred by the State for the provision 
of--
          (I) training approved by the Secretary for State 
        personnel operating under a cooperative agreement; and
          (II) specified out-of-State travel expenses incurred 
        by such personnel.
    (iii) A reimbursement paid to a State under this 
subparagraph shall be limited to costs incurred by such State 
for the provision of consultation services under this paragraph 
and the costs described in clause (ii).
    (C) Notwithstanding any other provisions of law, not less 
that 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.
          * * * * * * *
    (d)(1) Not later than 90 days after the date of enactment 
of this subsection, the Secretary shall establish and carry out 
a pilot program in 3 States to provide expedited consultation 
services, with respect to the provision of safe and healthful 
working conditions, to employers that are small businesses (as 
the term is defined by the Administrator of the Small Business 
Administration). The Secretary shall carry out the program for 
a period not to exceed 2 years.
    (2) The Secretary shall provide consultation services under 
paragraph (1) not later than 4 weeks after the date on which 
the Secretary receives a request from an employer.
    (3) The Secretary may impose a nominal fee to an employer 
requesting consultation services under paragraph (1). The fee 
shall be in an amount determined by the Secretary. Employers 
paying a fee shall receive priority consultation services by 
the Secretary.
    (4) In lieu of issuing a citation under section 9 to an 
employer for a violation found by the Secretary during a 
consultation under paragraph (1), the Secretary shall permit 
the employer to carry out corrective measures to correct the 
conditions causing the violation. The Secretary shall conduct 
not more than 2 visits to the workplace of the employer to 
determine if the employer has carried out the corrective 
measures. The Secretary shall issue a citation as prescribed 
under section 5 if, after such visits, the employer has failed 
to carry out the corrective measures.
    (5) Not later than 90 days after the termination of the 
program under paragraph (1), the Secretary shall prepare and 
submit a report to the appropriate committees of Congress that 
contains an evaluation of the implementation of the pilot 
program.
          * * * * * * *

SEC. 684. ALCOHOL AND SUBSTANCE ABUSE TESTING.

    (a) Program Purpose.--In order to secure a safe workplace, 
employers may establish and carry out an alcohol and substance 
abuse testing program in accordance with subsection (b).
    (b) Federal Guidelines.--
          (1) In general.--An alcohol and substance abuse 
        testing program described in subsection (a) shall meet 
        the following requirements:
                  (A) Substance abuse.--A substance abuse 
                testing program shall permit the use of an 
                onsite or offsite drug testing.
                  (B) Alcohol.--The alcohol testing component 
                of the program shall take the form of alcohol 
                breath analysis and shall conform to any 
                guidelines developed by the Secretary of 
                Transportation for alcohol testing of mass 
                transit employees under the Department of 
                Transportation and Related Agencies 
                Appropriations Act, 1992.
          (2) Definition.--For purposes of this section the 
        term ``alcohol and substance abuse testing program'' 
        means any program under which test procedures are used 
        to take and analyze blood, breath, hair, urine, saliva, 
        or other body fluids or materials for the purpose of 
        detecting the presence or absence of alcohol or a drug 
        or its metabolities. In the case of urine testing, the 
        confirmation tests must be performed in accordance with 
        the mandatory guidelines for Federal workplace testing 
        programs published by the Secretary of Health and Human 
        Services on April 11, 1988, at section 11979 of title 
        53, Code of Federal Regulations (including any 
        amendments to such guidelines). Proper laboratory 
        protocols and procedures shall be used to assure 
        accuracy and fairness and laboratories must be subject 
        to the requirements of subpart B of the mandatory 
        guidelines, State certification, the Clinical 
        Laboratory Improvements Act or the College of American 
        Pathologists.
    (c) Test Requirements.--This section shall not be construed 
to prohibit an employer from requiring--
          (1) an applicant for employment to submit to and pass 
        an alcohol or substance abuse test before employment by 
        the employer; or
          (2) an employee, including managerial personnel, to 
        submit to and pass an alcohol or substance abuse test--
                  (A) on a for-cause basis or where the 
                employer has reasonable suspicion to believe 
                that such employee is using or is under the 
                influence of alcohol or a controlled substance;
                  (B) where such test is administered as part 
                of a scheduled medical examination;
                  (C) in the case of an accident or incident, 
                involving the actual or potential loss of human 
                life, bodily injury, or property damage;
                  (D) during the participation of an employee 
                in alcohol or substance abuse treatment 
                program, and for a reasonable period of time 
                (not to exceed 5 years) after the conclusion of 
                such program; or
                  (E) on a random selection basis in work 
                units, locations, or facilities.
    (d) Construction.--Nothing in this section shall be 
construed to require an employer to establish an alcohol and 
substance abuse testing program for applicants or employees or 
make employment decisions based on such test results.
    (e) Preemption.--The provisions of this section shall not 
preempt any provision of State law.
    (f) Investigations.--The Secretary is authorized to conduct 
testing of employees (including managerial personnel) of an 
employer for use of alcohol or controlled substances during any 
investigations of a work-related fatality or serious injury.
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