[Senate Report 106-202]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 353
106th Congress                                                   Report
                                 SENATE
 1st Session                                                    106-202

======================================================================



 
              SAFETY ADVANCEMENT FOR EMPLOYEES ACT OF 1999

                                _______
                                

                October 28, 1999.--Ordered to be printed

                                _______
                                

   Mr. Jeffords, from the Committee on Health, Education, Labor, and 
                   Pensions, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 385]

    The Committee on Health, Education, Labor, and Pensions, to 
which was referred the bill (S. 385) 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 amendments 
and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
  I. Introduction.....................................................2
 II. Summary and purpose..............................................3
III. Legislative history and committee action.........................3
 IV. Committee views..................................................7
  V. Conclusion......................................................28
 VI. Section-by-section analysis.....................................29
VII. Application of law to legislative branch........................31
VIII.Regulatory impact statement.....................................31

 IX. Cost estimate...................................................32
  X. Minority views..................................................36
 XI. Executive agency comments on S. 385.............................61
XII. Changes in existing law.........................................65

                            I. Introduction

    On any given day in the United States, 17 workers will die 
and 18,600 workers will be injured on the job.1 
Safety inspections by the government are rare, and 
consultations with employers are even rarer. To stop the 
injuries and deaths suffered every day by the American worker, 
a system must be put in place to encourage the good employers 
to get safe voluntarily while simultaneously targeting and 
punishing the thin layer of bad work sites. This is the system 
promoted by the Safety Advancement for Employees (``SAFE'') Act 
(S. 385), and enacting it will save workers lives.
---------------------------------------------------------------------------
    \1\ Anne Scott, A Kinder, gentler, OSHA?, Bus. Rec. (Des Moines), 
April 7, 1997, at 10.
---------------------------------------------------------------------------
    The Occupational Safety and Health Administration, or OSHA, 
is the government agency responsible for regulating safety laws 
in America. The way that OSHA is supposed to work is to provide 
helpful assistance to the overwhelming number of employers who 
are actively pursuing safer workplaces. Simultaneously, OSHA 
should be effectively targeting those employers who are 
willfully disregarding safety laws, inspecting them, fining 
them, and then following up to make sure that bad practices are 
stopped before accidents occur. But what everyone knows is that 
this is not what is actually happening. What is happening is 
that OSHA lumps all employers together--both the good and the 
bad--treats them the same, and tries to inspect and fine them 
all, no matter how small or ridiculous the violation. 
Meanwhile, serious and potentially deadly practices go 
uninspected and unstopped. The result is disastrous, and 
unfortunately, is often fatal.
    As reported in the Associated Press, three quarters of work 
sites in the United States that suffered serious accidents in 
1994 and 1995 had never been inspected by OSHA during this 
decade.2 The report also showed that even OSHA 
officials acknowledge that their inspectors ``do not get to a 
lion's share of lethal sites until after accidents occur.'' 
3 Because it takes OSHA over 167 years to reach 
every work site in this country,4 the fact is that 
OSHA neither helps those good faith employers who want to 
achieve compliance with safety laws, nor effectively deters bad 
employers from breaking the law.
---------------------------------------------------------------------------
    \2\ The Associated Press, OSHA Failed to Inspect Committee of 
Workplaces Where Workers Died in '94, Asheville Citizen Times, 
September 5, 1995, at 1A.
    \3\ Ibid.
    \4\ AFL-CIO, Death on the Job: The Toll of Neglect, Apr. 1997, at 
3.
---------------------------------------------------------------------------
    This is why the committee believes that passing legislation 
like the SAFE Act is so vitally important. It will effectively 
add thousands of highly-trained safety and health professionals 
to the job of inspecting work sites all over the country where 
OSHA hasn't even been able to make a dent, while encouraging 
employers to get into compliance voluntarily. At the same time, 
it would allow OSHA to use its resources to target and punish 
serious safety offenders.
    The SAFE Act's proactive approach to achieving safer 
workplaces is revolutionary because it empowers both OSHA and 
employers who truly seek safety and health solutions. The 
result will mean vastly improved safety for America's workers.

                        II. Summary and Purpose

    The Clinton administration has acknowledged that OSHA's 
adversarial, command and control approach to worker safety 
hasn't worked, and it has responded by pledging a ``reinvented 
government'' that partners with employers in the effort to 
improve occupational safety and health. Vice President Gore has 
made strong statements that ``OSHA doesn't work well enough,'' 
and that OSHA should ``hire third parties such as private 
inspection companies'' to perform inspections.5 He 
has advocated a new approach at OSHA that would parallel the 
accountant's role on behalf of small businesses at tax time.
---------------------------------------------------------------------------
    \5\ Albert Gore, The Gore Report on Reinventing Government 
(Washington, D.C. September 1993), at 62-63.

          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.6
---------------------------------------------------------------------------
    \6\ See id. at 62.

    In fact, the Vice President's conclusions are at the heart 
of the SAFE Act's partnership approach. The SAFE Act will 
encourage employers to voluntarily hire third party consultants 
to audit their workplaces for compliance with OSHA and safety 
in general. These consultants must be qualified by OSHA as 
legitimate safety consultants and will work with employers on 
an ongoing basis to ensure that the employer is in compliance 
with OSHA regulations. Once the employer is in compliance, the 
consultant will issue him a ``certificate of compliance,'' 
which will exempt him from civil penalties for one year. 
However, at all times and under all circumstances, OSHA remains 
free to inspect those work sites, and if that employer is not 
acting in ``good faith'' as determined by OSHA, that employer 
is removed from the program.
    The SAFE Act's third party consultation provision codifies 
the Vice President's intent. It will result in tens of 
thousands of employers, perhaps more, getting expert safety 
consultations. It will allow OSHA to target its enforcement 
resources where they are most needed, and it preserves OSHA's 
power to inspect any workplace and order abatement as it sees 
fit.

             III. Legislative History and Committee Action

    On February 6, 1999, Senator Enzi introduced S. 385, the 
Safety Advancement for Employees (SAFE) Act of 1999.
    On March 4, 1999, the Senate Subcommittee on Employment, 
Safety and Training held a hearing on the SAFE Act entitled, 
``The New SAFE Act: Using Third Party Consultations and 
Encouraging Safety Programs to Make Workplaces Safer'' (S. Hrg. 
106-37). The following individuals provided testimony:

The Honorable Charles N. Jeffress, Assistant Secretary, 
        Occupational Safety and Health Administration, 
        Washington, D.C.
Harry C. Alford, President and C.E.O. of the National Black 
        Chamber of Commerce, Inc., Washington, D.C.
Robert J. Cornell, Director of Dealer Operations, Director of 
        Environmental Regulations, Chairman of the Safety 
        Committee, Mon Valley Petroleum, McKeesport, PA
Rosyln C. Wade, Assistant Commissioner, Minnesota Department of 
        Labor and Industry, St. Paul, MN
Curtis McGuire, President, Redlegs Lumper Service, Columbus, OH
Margaret Seminario, Director of Occupational Safety and Health, 
        AFL-CIO, Washington, D.C.
Edwin J. Folke, Jr., Partner, Jackson, Lewis, Shnitzler and 
        Krupman, Greenville, SC
Scott Hobbs, President, Hobbs, Inc., New Canaan, CT

    On April 13, 1999, the Subcommittee on Employment, Safety 
and Training had a second hearing on the SAFE Act entitled, 
``Accident Prevention, the Focus of SAFE'' (S. Hrg. 106-53). 
The following individuals provided testimony:

Ron Hayes, Founder and Director, Families In Grief Hold 
        Together (FIGHT) Project, Fairhope, AL
Charles LeCroy, Tallahassee, FL
Joanne Royce, Director, Program on Worker Health and Safety, 
        Government Accountability Project (GAP), Washington, 
        D.C.
William F. Alcarese, Baltimore, MD

    On April 29, 1999, the Senate Committee on Health, 
Education, Labor, and Pensions met in Executive Session to 
consider Senate bill 385, 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. 385. The 
amendment was accepted by voice vote and was used as the 
underlying vehicle.
    Senator Harkin offered an amendment to require Federal 
contracts debarment for persons who violate the Act's 
provisions. The amendment failed (8-10) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
                                    Sessions
                                    Jeffords

    Senator Wellstone offered an amendment to protect employees 
against reprisals from employers based on certain employee 
conduct concerning safe and healthy working conditions. The 
amendment failed (8-10) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
                                    Sessions
                                    Jeffords

     Senator Wellstone offered an amendment to modify 
provisions relating to citations and penalties. The amendment 
failed (9-9) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
Jeffords                            Sessions

    Senator Kennedy offered an amendment to strike provisions 
relating to exemptions from civil penalties for compliance with 
a certificate of compliance. The amendment failed (8-10) on a 
rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
                                    Sessions
                                    Jeffords

    Senator Kennedy offered an amendment to clarify that the 
civil penalty exemption does not apply to violations that were 
willful, repeat, or likely to cause serious harm to employees. 
The amendment failed (8-10) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
                                    Sessions
                                    Jeffords

    Senator Kennedy offered an amendment to limit the exemption 
of an employer from certain civil penalties based on the 
employer's receipt of a certificate of compliance. The 
amendment failed (8-10) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
                                    Sessions
                                    Jeffords

    Senator Wellstone offered an amendment to protect the 
safety and health of State and local employees. The amendment 
failed (9-9) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
Jeffords                            Sessions

    Senator Reed offered an amendment to permit the expenditure 
of funds to complete certain reports concerning accidents that 
result in the death of minor employees engaged in farming 
operations. The amendment failed (9-9) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Brownback
Murray                              Hagel
Reed                                Sessions
Collins                             Jeffords

    Senator Reed offered an amendment to provide for a private 
right of action and criminal penalties for certain conduct 
during a third party consultation. The amendment failed (8-10) 
on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
                                    Sessions
                                    Jeffords

    Senator Brownback offered an amendment to ensure that 
individuals with expertise in workplace safety and health are 
eligible to be certified safety and health consultants. The 
amendment was accepted by voice vote.
    Senator Wellstone offered an amendment to provide for 
coverage of employees of the Federal Government. The amendment 
failed on a voice vote.
    Senator Murray offered an amendment to provide flexibility 
in screening certain complaints while protecting fundamental 
worker rights. The amendment failed (8-10) on a rollcall vote:
        YEAS                          NAYS
Kennedy                             Gregg
Dodd                                Frist
Harkin                              DeWine
Mikulski                            Enzi
Bingaman                            Hutchinson
Wellstone                           Collins
Murray                              Brownback
Reed                                Hagel
                                    Sessions
                                    Jeffords

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

                          IV. Committee Views


                       third party consultations

OSHA leaves small businesses stranded

    When OSHA was created by Congress in 1970, its mandate was 
to assure for all workers safe and healthful working conditions 
``by encouraging employers and employees in their efforts to 
reduce the number of occupational safety and health hazards at 
their places of employment.'' \7\ The agency, however, has 
never seriously attempted to ``encourag[e] employers and 
employees in their efforts'' \8\ to create safe workplaces. 
Instead, OSHA operates according to an adversarial, command and 
control mentality which neither encourages good faith employers 
nor effectively deters bad faith employers. The result is that 
the majority of small business people who care about worker 
safety are left stranded without needed compliance help while 
those employers who do not care simply ``play the odds'' that 
they will never be inspected.
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    \7\ Occupational Safety and Health Act, 29 U.S.C. Sec. 651(b)(1) 
(1970).
    \8\ Id. (Emphasis added.)
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    OSHA has estimated that 95 percent of American employers 
``are doing their level best to try to voluntarily comply with 
OSHA.'' \9\ On March 4, 1999, the Subcommittee on Employment, 
Safety and Training held the first of two hearings on the SAFE 
Act to highlight how so many of these good faith employers want 
the safest of workplaces, but are drowning in over 1,200 pages 
of highly technical safety regulations promulgated by OSHA. All 
of the employers who came to the hearing testified that they 
were left on their own to comply with every one of the 
thousands of rules without helpful assistance from OSHA, and 
that passing the SAFE Act would give them the tools they need 
to get safer work sites. As stated by Harry C. Alford, 
President & CEO of the National Black Chamber of Commerce,
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    \9\ Ellen Byerrum, Decline in Inspection Numbers Prompts Renewed 
Enforcement Emphasis, Says OSHA, (BNA), No. 38, at A-8 (February 26 
1997). Author quotes Deputy Assistant Secretary Frank Strasheim who 
estimates that ``probably 95 percent of the employers in the country do 
their level best to try to voluntarily comply with OSHA.''

          At the White House Conference on Small Business, 
        1995, Vice President Gore spoke and assured the 
        delegates that OSHA, under the reinvented government, 
        would work as a partner with employers. ``There is 
        going to be much less paper work and far fewer fines. 
        We want you in compliance and the fastest, simplest and 
        least painful way to get you there is how we want to do 
        it.'' The Vice President said OSHA inspectors would be 
        trained to work with employers as partners. * * * The 
        SAFE Act is the proper vehicle to achieve the ends 
        stated by the Vice President.\10\
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    \10\ The New SAFE Act, Hearing on S. 385 Before the Senate Subcomm. 
on Employment, Safety and Training, 106th Cong., 1st Sess (1999) 
[hereinafter The New SAFE Act Hearing] (statement of Harry C. Alford, 
Jr., Chairman and C.E.O. of the National Black Chamber of Commerce, 
Inc.) at 41.

    The sheer volume of OSHA regulations that even the smallest 
of businesses are expected to read, understand and implement is 
staggering--comprising of more pages than Gone With the Wind, 
the Canterbury Tales, or even the Old and New Testaments of the 
King James Version of the Bible combined. In fact, many of the 
regulations bear no relationship to safety at the workplace. 
Others are so vague that discerning one correct interpretation 
is impossible. The result is that employers are left to fend 
for themselves, wasting valuable time and money misinterpreting 
regulations and making work site improvements that are either 
not required by OSHA or related to workplace safety, or both. 
Edwin Folke, former Chairman of the Occupational Safety and 
Health Review Commission and current partner in the law firm of 
Jackson, Lewis, Schnitzler and Krupman, testified that one 
major advantage of the SAFE Act was that it would help 
particularly the smallest of employers wade through complex 
regulations with professional assistance to improve on-the-job 
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safety and health.

          Most employers strive to provide a safe and healthful 
        workplace. However, many employers, especially small 
        businesses, just do not have--and most likely will 
        never be able to achieve--the scientific expertise 
        necessary to address every conceivable workplace hazard 
        that might exist. We must also recognize that many 
        small employers will never have the personnel, nor the 
        financial ability, to implement a comprehensive safety 
        and health program that you would expect to see at a 
        Fortune 500 company. However, encouraging an employer 
        through modest incentives to voluntarily work with a 
        qualified and certified safety and health professional 
        to develop and implement a safety and health program, 
        which is tailored to meet that employer's unique needs, 
        seems appropriate.\11\
---------------------------------------------------------------------------
    \11\ See id. at 74 (statement of Edwin G. Folke, Jr. Partner, 
Jackson, Lewis, Schnitzler and Krupman).

    In fact, many small employers have responded to the 
overwhelming regulatory burden by hiring an outside, private 
safety professional to audit the workplace for safety hazards 
and to find out how to implement workable abatement strategies. 
The results have been overwhelmingly successful. Studies have 
demonstrated the tangible results that flow from such safety 
consultations, including sizable reductions in worker injury 
and illness rates.\12\ The testimony of Scott Hobbs lends 
further support to this conclusion:
---------------------------------------------------------------------------
    \12\ National Association of Manufacturers, OSHA Reform Survey: 
Summary of Findings, 1996 (A 1996 survey of 191 companies concluded 
that the predominant theme of the respondents' occupational success 
stories was that employee safety and health was improved by the 
company's own initiatives--including employing safety consultants to 
anticipate and correct OSHA problems--rather than anything done by 
OSHA.); James L. Loud, Are your safety inspections a waste of time?, 
Professional Safety, January 1989, at 32 (A 1981 survey of 143 Nebraska 
firms showed that those conducting safety audits averaged nearly 40 
percent fewer accidents than firms without an established audit 
program.).

          The use of third-party auditors to improve workplace 
        safety and health is not a radical or untested new 
        idea. It is a common practice in the construction 
        industry. In fact, 80 of [the Associated General 
        Contractors' (AGC)] 99 chapters across the country 
        provide some form of safety and health audit for AGC 
        members. These audits are a proven means of improving 
        safety and health, especially for small and medium-
        sized contractors who otherwise would receive no formal 
        safety and health information. In a survey of AGC 
        members, several contractors report their injury and 
        illness rates dropping more than 20% after a third-
        party safety audit.\13\
---------------------------------------------------------------------------
    \13\ The New SAFE Act, Hearing, supra note 10, at 86 (statement of 
Scott Hobbs, President of Hobbs, Inc.).

    The statistics illustrating the importance of safety 
consultants in the workplace parallel Vice President Gore's 
call for OSHA to use private safety professionals more while 
simultaneously requiring less paperwork and issuing fewer 
fines. In his Report on Reinventing Government, the Vice 
President concluded that employers should be encouraged by OSHA 
to use private safety professionals as a way to vastly improve 
the health and safety of American workers ``without bankrupting 
the federal treasury.'' \14\ Such an approach would ``ensure 
that all workplaces are regularly inspected, without hiring 
thousands of new employees.'' \15\ 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.'' \16\
---------------------------------------------------------------------------
    \14\ Gore, supra note 5, at 62.
    \15\ Id. at 62.
    \16\ Id. at 63.
---------------------------------------------------------------------------
    Following the Vice President's lead, even OSHA has 
recognized the significant value of the third party auditor; it 
has recommended to employers seeking help from a 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.'' 17 The General Accounting Office (GAO) 
has also 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.'' 
18
---------------------------------------------------------------------------
    \17\ Occupational Safety and Health Reform and Reinvention Act, 
Hearing on S. 1423 Before the Senate Comm. on Labor and Human 
Resources, 104th Cong., 1st Sess. 99 (1995) [Memorandum from John B. 
Miles, Jr., Director, Directorate of Compliance Programs and Nelson 
Reyneri, Director, Office of Reinvention, to the OSHA Regional 
Administrators (May 2, 1995) (emphasis added).
    \18\ U.S. General Accounting Office, Options for Improving Safety 
and Health in the Workplace (Washington, D.C.:GAO/HRD-90-66BR, 1990), 
at 15.
---------------------------------------------------------------------------
    The value of third party audits in improving safety and 
health at work sites was widely supported at the two hearings 
on the SAFE Act held by the Subcommittee on Employment, Safety 
and Training. Three of the witnesses at the March 4, 1999, 
subcommittee hearing had used a private safety consultant and 
testified as to the overwhelmingly positive results. In each 
instance, the small business owner expended substantial amounts 
of money to hire a private safety professional and fix the 
identified problems, and the result was that each employer 
experienced significant reductions in their worker injury and 
illness rates following the involvement of the safety 
professional. According to Bob Cornell's testimony, this 
occurred in great part because his company both expected and 
received from the consultant an honest reporting of safety 
problems that did not gloss over areas of needed improvement.

          We knew going in that it would be a comprehensive 
        inspection, and that no stone would be left unturned. 
        But that was our objective. Even though we had 
        requested the inspection, we were not looking for a 
        favorable report. We wanted an honest report. We wanted 
        to know if we had any deficiencies, and if so, where 
        they were. Our goal was to correct those deficiencies 
        and, most importantly, to provide a safe workplace for 
        our employees.
          When we received the inspection report, it showed us 
        where we were in compliance with OSHA and where we were 
        not. Using the information contained in the report,
our Safety Committee followed through on the recommendation we 
could complete in-house.19
---------------------------------------------------------------------------
    \19\ The New SAFE Act Hearing, supra note 10, at 45 (statement of 
Robert J. Cornell, Director of Dealer Operations, Chairman of the 
Safety Committee, Mon Valley Petroleum, Inc.).

    Also significant was that the employers at the March 
hearing uniformly testified that they were able to openly 
communicate with the private consultant about safety problems. 
This is significant because many employers, and particularly 
the smallest of employers, are very reluctant to communicate 
safety problems to OSHA for fear of retaliation. Both Bob 
Cornell and Curtis McGuire agreed that they were not 
---------------------------------------------------------------------------
comfortable calling OSHA for help. As Bob Cornell testified:

          I was extremely apprehensive about asking OSHA for 
        help, feeling that would open the door to extensive 
        fines and penalties. Yes, I feared the statement, 
        ``Hello, I'm from the government and I'm here to 
        help.'' 20
---------------------------------------------------------------------------
    \20\ Ibid.

    Curtis McGuire also testified that the open communication 
he shared with his safety consultant was a key factor in 
---------------------------------------------------------------------------
obtaining the improved safety results achieved at his company.

          I felt free to explain to him what I expect of my 
        employees and what happens on a daily basis--whether 
        good or bad. This was important to me, because there 
        had been days when my employees had not followed our 
        set safety guidelines, and I did not know how to 
        adequately address and correct this for the future. * * 
        * This freedom to honestly discuss our workplace 
        practices was key to accurately assessing what we could 
        do to prevent injuries and create a safer workplace. 
        21
---------------------------------------------------------------------------
    \21\ The New SAFE Act Hearing, supra note 10, at 53 (statement of 
Curtis McGuire, Owner, Redlegs Lumper Service).

    Mr. McGuire went on to testify that he would not feel 
comfortable talking in such an open manner about his company's 
---------------------------------------------------------------------------
safety concerns with an OSHA consultant.

          In all honesty, my personal preference is to work 
        with a private consultant hired by us than one provided 
        by OSHA.22
---------------------------------------------------------------------------
    \22\ Ibid.
---------------------------------------------------------------------------

The substantial training and qualifications required to become a 
        consultant under the SAFE Act

    For over 25 years, safety professionals have become 
experienced at understanding OSHA's requirements and at 
implementing individual solutions that fit workplaces as 
diverse as manufacturing plants, funeral homes and retail 
stores. Indeed, one of the most important benefits provided by 
third party consultants is that they are not bound to conduct 
compliance inspections (as OSHA inspectors are), but can also 
target other safety problems that exist in each work 
environment. The SAFE Act recognizes and responds to the 
diversity of small and medium-sized employers by giving them an 
incentive to call a safety consultant who can work with them to 
find solutions to their specialized safety needs.
    Additionally, the SAFE Act specifies that only the most 
well-trained safety professionals may conduct safety audits 
under the bill. For example, the bill makes Certified 
Industrial Hygienists (CIH) and Certified Safety Professionals 
(CSP) eligible for qualification as consultants. In both cases, 
the highest degree of safety education and training is 
required. To become a CIH, individuals must have a bachelor's 
degree in science, at least 5 years employment in the field, 
and have passed a comprehensive examination.23 Board 
certified safety professionals (CSP) and safety engineers must 
have a bachelor's degree, have a least 4 years professional 
safety experience or an advanced degree or certification, and 
pass a comprehensive national examination.24
---------------------------------------------------------------------------
    \23\ American Board of Industrial Hygiene certification handbook, 
at 7-12.
    \24\ Board of Certified Safety Professionals, Certified Safety 
Professional Candidate Handbook, May 1997, at 3-5 (See Appendix II).
---------------------------------------------------------------------------
    Another highly important aspect of becoming a CIH or CSP 
are the strict ethical codes to which each is bound. Each CIH, 
for example, is required to follow six Cannons of Ethical 
Conduct, including the mandatory requirement to ``Avoid 
circumstances where a compromise of professional judgment or 
conflict of interest may arise.'' 25 Similarly, all 
CSP's are bound by a six-pronged code of professional conduct, 
which includes the standard to ``Hold paramount the safety and 
health of people.'' 26
---------------------------------------------------------------------------
    \25\ Code of Ethics for the Practice of Industrial Hygiene, Cannons 
of Ethical Conduct.
    \26\ Board of Certified Safety Professionals, Certified Safety 
Professional Candidate Handbook, May 1997, at 7.
---------------------------------------------------------------------------
    These requirements and standards far exceed the education 
and training prerequisites for becoming an OSHA inspector. 
Under current regulations, the only formal training required 
for becoming an OSHA inspector is 6 to 7 weeks of formal 
classroom instruction at OSHA.27
---------------------------------------------------------------------------
    \27\ Letter from Gregory Watchman, Acting Assistant Secretary, 
Occupational Safety and Health Administration, to James Talent, 
Chairman, U.S. House of Representatives Small Business Committee, 
(August 15, 1997), at 2.
---------------------------------------------------------------------------

SAFE Act consultants can be held liable for bad behavior; OSHA 
        inspectors are immune

    It is also highly significant that there is a far different 
standard of liability for private consultants than for OSHA 
inspectors who act with negligence or even gross negligence in 
performing their safety duties. Private safety consultants have 
been uniformly held liable for negligence in performing safety 
inspections; OSHA inspectors are wholly immune from liability, 
even for the most negligent behavior.
    In one recent case, the Supreme Court of Arkansas held that 
a private safety consultant owed a duty of reasonable care in 
making inspections, and could be held liable if he was found to 
have breached that duty.28 Rulings in other courts 
have been similar.29 However, similar negligence 
practiced by an OSHA inspector has the absolute opposite 
result. Further, the courts have taken a strict interpretation 
of this immunity, even when the facts of the case illustrate an 
OSHA inspector has engaged in ``disturbing'' 
negligence.30 In one case before the First Circuit, 
for example, a woman brought suit against negligent OSHA 
inspectors after suffering horrible injuries when her hair was 
drawn into a vacuum created by the high-speed rotation of a 
drive shaft. The court held, however, that its hands were tied. 
While noting that the ``case has disturbing aspects'' because 
``the government's [OSHA] inspectors appear to have been 
negligent and the plaintiff suffered grievous harm,'' the court 
was prevented from assigning liability to OSHA due to OSHA's 
immunity from suit.31
---------------------------------------------------------------------------
    \28\ O'Neal Wilson v. Rebsamen Insurance, Inc., et al., 957 S.W.2d 
678 (Ark. 1997).
    \29\ See Price v. Management Safety, Inc., 485 So.2d 1093 (Ala. 
1986); Santillo v. Chambersburg Engineering Company, et al., 603 F. 
Supp. 211 (E.D. Pa. 1985); Canipe v. National Loss Control Service 
Corporation, 736 F.2d 1055 (5th Cir. 1984).
    \30\ Irving v. United States, 162 F.3d 154, 169 (1st Cir. 1998).
    \31\ Id. at 169.
---------------------------------------------------------------------------

Safety and health groups, former OSHA inspectors support the SAFE Act

    The SAFE Act is supported by two of the most prominent 
safety professional organizations in America, the American 
Society of Safety Engineers (ASSE) and the American Industrial 
Hygiene Association (AIHA). Their support is particularly 
important given the groups' dedication to and expertise in 
improving safety and health and given their frequent support of 
many of OSHA's programs and regulations.
    ASSE and AIHA have said that they support the SAFE Act 
because it embodies suggestions that they have long believed 
should be part of an effective OSHA. Testifying on behalf of 
AIHA, Gayla McClusky, a former OSHA inspector and current 
Treasurer and member of the Board of Directors of AIHA, 
testified that:

          There are more than six million workplaces that are 
        under the jurisdiction of OSHA. Currently, there are 
        approximately 2,500 compliance officers in the Federal 
        and state programs. Given the millions of workplaces, 
        it should be obvious that most will never see a 
        compliance officer. OSHA's goal should be that every 
        employer has routine assessments of their facilities 
        conducted by a competent health and safety professional 
        to identify and correct health and safety hazards. 
        Therefore, strategies such as third party assistance 
        can be a part of the solution.32
---------------------------------------------------------------------------
    \32\ The New SAFE Act Hearing, supra note 10 at 79 (statement of 
Gayla McCluskey, Treasurer, American Industrial Hygiene Association).

    ASSE has taken a similar position in a letter endorsing the 
---------------------------------------------------------------------------
SAFE Act:

          Utilizing the skills and abilities of qualified 
        private sector safety professionals as a third party 
        consultation medium benefits the employer, the 
        government, and most important of all--the American 
        worker.33
---------------------------------------------------------------------------
    \33\ Letter from Jerry P. Ray, CSP, President, American Society of 
Safety Engineers, to James Talent, Chairman, U.S. House of 
Representatives Small Business Committee (October 7, 1997), at 5.

    Other former OSHA inspectors have endorsed the SAFE Act as 
well. William Alcarese, a former Federal and State OSHA 
inspector, testified that the SAFE Act is a good idea because 
it would help employers take a more active view in how they 
---------------------------------------------------------------------------
address safety in the workplace.

          Safety management is a process not an event. S. 385 
        addresses safety management as a methodology to tackle 
        work place safety issues. It provides employers 
        resources to tackle and learn through the aid of 
        competent trained safety professionals what this safety 
        stuff really means. It allows for the approach to 
        address hazards where the losses are occurring, and 
        where the potential problems are 
        festering.34
---------------------------------------------------------------------------
    \34\ Accident Prevention: The Focus of SAFE, Hearing on S. 385 
Before the Senate Subcomm. on Employment, Safety and Training, 106th 
Cong., 1st Sess (1999) [hereinafter Accident Prevention Hearing] 
(statement of William Alcarese) at 29.

    Steve Cave, former Assistant Area Director/Team Leader with 
OSHA, has also strongly supported the SAFE Act. Speaking at the 
press conference accompanying introduction of the SAFE Act, Mr. 
---------------------------------------------------------------------------
Cave remarked that:

          [The SAFE Act] will provide a direct incentive to 
        private-sector employers to improve workplace safety 
        and health by enabling them to correct hazards in the 
        most effective manner possible. In addition, use of 
        private-sector third-party consultants will empower 
        OSHA to focus its efforts in areas that will provide 
        more direct benefit to employee safety and 
        health.35
---------------------------------------------------------------------------
    \35\ Press conference to introduce the SAFE Act in the House and 
Senate, 105th Cong., 1st Sess. (September 30, 1997) (statement of Steve 
Cave).
---------------------------------------------------------------------------

Victims rights advocates support the SAFE Act

    As discussed above, the Subcommittee on Employment, Safety 
and Training's first hearing on March 4, 1999, highlighted how 
OSHA is not helping the 95 percent of small business people who 
care about worker safety read through or implement the 
thousands of pages of safety regulations. The subcommittee's 
second hearing on April 13, 1999, focused on the flip side of 
that coin, and looked at how OSHA is not deterring the thin 
layer of bad employers from willfully violating safety laws 
either. At its second hearing, the subcommittee heard from 
family members who lost loved ones in workplace accidents and 
how OSHA neither helped prevent these accidents from occurring 
nor adequately responded after the accidents took place. They 
agreed that the SAFE Act would make OSHA a more effective 
agency as well as improve workplace safety and health across 
the board.
    Ron Hayes, founder and director of the Families In Grief 
Hold Together (``FIGHT'') Project, was one of the witnesses at 
this hearing. Mr. Hayes began the FIGHT Project after his 
nineteen year old son Patrick was killed on the job in 1993. He 
testified that passing the SAFE Act would put OSHA ``on the 
right track'' and be a proactive step towards ending worker 
injuries and fatalities.

          It is still disheartening to see so many people 
        injured and killed on the job, I believe any initiative 
        that brings about good positive change and oversight to 
        this agency, such as this bill, should be embraced and 
        put to the test. It has been said ``if we do not learn 
        from our past, we are doomed to repeat it in the 
        future.'' [W]e have given OSHA 29 years to make a 
        difference, can we really wait many more years to find 
        out if this agency will learn to become a proactive 
        partner with everyone in the work place? 36
---------------------------------------------------------------------------
    \36\ Accident Prevention Hearing, supra note 34, at 10 (statement 
of Ron Hayes, Founder, Families In Grief Hold Together (FIGHT) 
Project).

    Mr. Hayes specifically targeted OSHA's unsuccessful 
``reactive enforcement methodology'' as being the reason that 
OSHA has been both unresponsive to the good faith employer's 
compliance needs and absent from the bad faith employer's work 
site all together. 37 He also testified that OSHA's 
approach forces the good faith companies to lose out to the bad 
faith employers in the marketplace as well.
---------------------------------------------------------------------------
    \37\ Id. at 9.

          [The] good businesses build into their product or 
        bids safety measures and are sometimes undercut by 
        other uncaring business owners, so under our present 
        OSHA system, what is their benefit?
          The bad companies know OSHA is ineffective and 
        because of the length of time it will take OSHA to 
        inspect every work site or get around to inspecting 
        them, the odds are on their side and even if caught, 
        they know OSHA will not do much. This bill will give 
        the good business some incentive to continue their good 
        work and will bring more business into safety 
        compliance, saving life and limb. 38
---------------------------------------------------------------------------
    \38\ Id. at 9-10.

    Charles LeCroy also testified at the Subcommittee's April 
hearing. Mr. LeCroy's son, Lance, was killed in 1994 in an 
industrial explosion in Florida. Mr. LeCroy testified that OSHA 
needed to be more proactive in approaching workplace safety, 
and urged the subcommittee members to pass the SAFE Act.
          OSHA has been in the past and today is still in need 
        of substantial alteration if they are to meet the goals 
        of providing health and safety for millions of workers 
        as Congress has mandated. We just ask the subcommittee 
        to know that OSHA has fallen seriously short of 
        insuring work sites free of hazards. * * * Please lead 
        the way to enacting S. 385. That piece of legislation 
        will be a giant step for millions of men and women who 
        go someplace everyday earning their living. * * * While 
        S. 385 may not be the perfect piece of legislation 
        [sic] it is considered a significant move to enhance 
        the image, integrity and audibility of OSHA. All the 
        while OSHA has been known as the big watchdog of work 
        sites. Let's enable the watch dog to be better trained, 
        work better trained trainers, to be more responsible, 
        to be more cooperative with employers and employees, to 
        take the lead and be proactive rather than merely to 
        wait for something to happen.39
---------------------------------------------------------------------------
    \39\ Accident Prevention Hearing, supra note 34, at 16 (statement 
of Charles LeCroy) .
---------------------------------------------------------------------------

Two groups opposed to the SAFE Act: OSHA and the national AFL-CIO

    Eleven witnesses testified about the SAFE Act in the two 
hearings dedicated to the bill in the Subcommittee on 
Employment, Safety and Training this Congress. Nine of those 
witnesses testified in favor of the bill, including two former 
OSHA compliance officers, safety professionals, small 
businesses, the former Chairman of the Occupational Safety and 
Health Review Commission, victim rights advocates, and fathers 
of sons killed in workplace accidents. 40 Every one 
of these diverse groups thought the SAFE Act was a good idea; 
every one believed that the SAFE Act embodied a system that 
would encourage the good employers to find out how to achieve 
safety voluntarily while also targeting and punishing the thin 
layer of bad work sites. Two groups have opposed the bill: the 
Occupational Safety and Health Administration (OSHA) and the 
National AFL-CIO.
---------------------------------------------------------------------------
    \40\ See generally, The New SAFE Act, Hearing on S. 385 Before the 
Senate Subcomm. on Employment, Safety and Training, 106th Cong., 1st 
Sess (1999); Accident Prevention: The Focus of SAFE, Hearing on S. 385 
Before the Senate Subcomm. on Employment, Safety and Training, 106th 
Cong., 1st Sess (1999).
---------------------------------------------------------------------------
    Both Charles Jeffress, Assistant Secretary of OSHA, and 
Margaret Seminario, Director of Occupational Safety and Health 
for the AFL-CIO, testified against the bill. In fact, the heart 
of OSHA's and the AFL-CIO's opposition is what the committee 
sees as the great virtue of the bill: the SAFE Act utilizes and 
relies on the most qualified and highly trained safety 
professionals to get the Nation's work sites into compliance. 
This new approach is what the committee considers to be the 
crown jewel of the SAFE Act.
    It takes years of schooling and training to become a 
private safety consultant under the SAFE Act; 41 it 
only takes about 6 to 7 weeks of formal classroom training to 
become an OSHA inspector.42 Private safety 
professionals are also held responsible for their actions as 
they are bound by strict ethical codes and can be held legally 
liable for negligent behavior. It is for these reasons that the 
committee so strongly supports the SAFE Act's utilization and 
reliance on highly trained safety professionals to get 
workplaces into compliance. However, OSHA and the National AFL-
CIO rest almost all of their opposition to the bill on this 
same basis.
---------------------------------------------------------------------------
    \41\ The bill makes Certified Industrial Hygienists (CIH) and 
Certified Safety Professionals (CSP) eligible for qualification as 
consultants. In both cases, the highest degree of safety education and 
training is required. To become a CIH, individuals must have a 
bachelor's degree in science, at least 5 years employment in the field, 
and have passed a comprehensive examination. Board certified safety 
professionals (CSP) and safety engineers must have a bachelor's degree, 
have a least 4 years professional safety experience or an advanced 
degree or certification, and pass a comprehensive national examination. 
See Board of Certified Safety Professionals, Certified Safety 
Professional Candidate Handbook, May 1997, at 3-5 (See Appendix II).
    \42\ Watchman letter, supra note 27, at 2.
---------------------------------------------------------------------------
    Assistant Secretary Jeffress' testimony in opposition to 
the bill suggested that government employees (such as OSHA 
compliance officers) have more integrity when it comes to 
protecting worker safety and health than do private safety 
professionals. Assistant Secretary Jeffress testified as 
follows:

          [T]he private sector is driven by the market, not a 
        mandate to protect employee safety and health.
          The consultant would feel pressured to sell penalty 
        exemptions without rigorously inspecting workplaces in 
        order to create business.43
---------------------------------------------------------------------------
    \43\ The New SAFE Act Hearing, supra note 10, at 16 (statement of 
Charles Jeffress, Assistant Secretary, Occupational Safety and Health 
Administration)

    One of Assistant Secretary Jeffress' additional concerns 
was that, as he testified, OSHA would be unable to adequately 
discipline ``unconscientious consultants'' who could inflict 
harm on ``thousands of working Americans,'' 44 
despite the fact that a consultant could be held criminally 
liable under Section 17(g) of the OSH Act for making ``any 
false statement, representation or certification,'' 
45 and could have his professional license revoked 
by the professional certifying body for bad 
behavior.46 Interestingly, however, Assistant 
Secretary Jeffress has noted that these penalties--criminal 
liability under section 17(g) and ``appropriate personnel 
action''--are a sufficient deterrent for OSHA 
inspectors.47
---------------------------------------------------------------------------
    \44\ Ibid.
    \45\ Occupational Safety and Health Act, 29 USC 666(g).
    \46\ Letter from Jerry P. Ray, President, American Society of 
Safety Engineers, to Alexis Herman, Secretary, Department of Labor 
(January 6, 1998), at 4.
    \47\ Letter from Charles Jeffress, Assistant Secretary, 
Occupational Safety and Health Administration, to Michael B. Enzi, 
Chairman, U.S. Senate Employment, Safety and Training Subcommittee 
(April 16, 1999), at 2.
---------------------------------------------------------------------------
    Statements such as these which suggest that private safety 
professionals are less ethical than OSHA inspectors are 
unacceptable and downright false. What the evidence in fact 
suggests is that OSHA inspectors are just as subject to ethical 
failings as anyone else. Some evidence even suggests that some 
OSHA inspectors--with the power to ruin or save a company based 
on the number of citations and monetary fines levied--have 
engaged in behavior that is suspect.48
---------------------------------------------------------------------------
    \48\ See Michael Dresser, Ticket gift may violate ethics laws, The 
Sun, September 30, 1996, at 1B; Jim Morris, Dangerous bridge led to 
OSHA official's resignation, Houston Chronicle, Fall 1994, at 13.
---------------------------------------------------------------------------
    The testimony of the AFL-CIO witness, Margaret Seminario, 
paralleled that of Assistant Secretary Jeffress. One additional 
point of note that Ms. Seminario made was that the SAFE Act 
should be opposed because ``even the best companies, with the 
best safety and health programs can have serious safety and 
health hazards that put workers in danger.'' 49 This 
statement, however, only begs the question that the SAFE Act 
attempts to answer: why should the best companies with the best 
plans in place be hit over the head with OSHA fines rather than 
helped into compliance under the SAFE Act? The point is that 
good companies are currently doing what they think needs doing 
now, and threats from OSHA will not improve workplace safety. 
In these workplaces, what the employer needs is effective help, 
not additional coercion.
---------------------------------------------------------------------------
    \49\ The New SAFE Act Hearing, supra note 10, at 61 (statement of 
Margaret Seminario, Director of Occupational Safety and Health, AFL-
CIO).
---------------------------------------------------------------------------
    What OSHA and the AFL-CIO want is what ultimately, it can 
never have: total control for OSHA to dictate how worker safety 
should be achieved without turning a critical eye to OSHA's 
most serious shortcomings and seeking solutions that remedy 
problems. With only about 2,500 inspectors for the whole 
country 50, OSHA is only able to inspect every work 
site once every 167 years.51 OSHA inspectors simply 
cannot spend enough time at any given workplace to really 
understand the particular safety needs of that workplace. 
Therefore, just as OSHA in its current set up is no real help 
to employers who want to comply, it is no real deterrent to 
that thin layer of employers who are insensitive to safety. 
Those employers know that the chance of a serious OSHA 
inspection is very small. Even OSHA has admitted that in the 
vast majority of cases, it does not inspect workplaces where a 
death occurs until after the fatality,52 when it is 
too late for the deceased worker and his family.
---------------------------------------------------------------------------
    \50\ Watchman letter, supra note 27 at 4.
    \51\ AFL-CIO, supra note 4, at 3.
    \52\ Associated Press, supra note 2, at 1A.
---------------------------------------------------------------------------

Why the SAFE Act is needed and so strongly supported.

    OSHA has suggested that, if passed, the SAFE Act will not 
be used by employers. It bases this conclusion on a survey of 
employers conducted by North Carolina's state OSHA plan. This 
survey asked employers whether they would prefer to have an 
OSHA consultant perform safety consultations at their work 
sites or a private consultant, and the majority of employers 
responded that they would rather use an OSHA 
consultant.53
---------------------------------------------------------------------------
    \53\ The New SAFE Act Hearing (Jeffress testimony), supra note 43, 
at 24.
---------------------------------------------------------------------------
    This survey, however, misses the point entirely. The first 
and most obvious problem with OSHA's conclusion is that these 
employers were asked whether they would use a private 
consultant under the current system; they were not asked if 
they would want to pay for and use a private consultant if the 
SAFE Act passed and they had an incentive to do so. Such a 
question would clearly yield quite different results.
    The second disconnect with OSHA's conclusion is that the 
SAFE Act is the most supported OSHA reform bill in history. 
Dozens of business groups have applauded the SAFE Act for 
giving businesses the tools they need to get safer workplaces, 
including the American Bakers Association, the American Dental 
Association, the American Farm Bureau Federation, the American 
Health Care Association, the Associated Builders Contractors, 
Inc., the Associated General Contractors of America, the 
Coalition on Occupational Safety & Health, the Food 
Distributors International, the National Association of 
Convenience Stores, the National Association of Home Builders, 
the National Association of Manufacturers, the National Black 
Chamber of Commerce, the National Cattleman's Beef Association, 
the National Cotton Council of America, the National Cotton 
Ginners' Association, the National Federation of Independent 
Businesses, the National Funeral Directors Association, the 
National Mining Association, the National Paint and Coatings 
Association, the National Restaurant Association, the National 
Roofing Contractors Association, National Small Business 
United, the Painting and Decorating Contractors of America, the 
Printing Industries of America, Inc., the Small Business 
Survival Committee, the Society of American Florists, the 
Synthetic Organic Chemical Manufacturers Association, and the 
United States Chamber of Commerce.
    Indeed, when the panel of small business witnesses was 
asked by Senator Wellstone (D-MN) at the subcommittee's March 
hearing why the SAFE Act was needed given the fact that 
employers are already using safety consultants, the strong 
response from the panelists was that the incentive contained in 
the SAFE Act was instrumental in getting more employers 
involved in safety. Scott Hobbs testified as follows:

          [The SAFE Act] would allow us just one more carrot to 
        try to bring these people into the safety blanket. Once 
        they try it, they very well might find out all the 
        other benefits that can come along. 54
---------------------------------------------------------------------------
    \54\ The New SAFE Act Hearing (Hobbs testimony), supra note 13, at 
94.

    Mr. Cornell strongly agreed that adding a ``kicker to a 
small business person who does not want to generally get 
involved with big government anyway'' would help bring even 
more employers into the safety fold. 55
---------------------------------------------------------------------------
    \55\ The New SAFE Act Hearing (Cornell testimony), supra note 19, 
at 56-57.
---------------------------------------------------------------------------

The new SAFE Act: Safety and Health Plans added based on OSHA's SHARP 
        program

    One of the most important changes made to the SAFE Act in 
the 106th Congress is that the third party consultation section 
of the bill has been strengthened significantly. This section 
now requires that employers who voluntarily opt into the SAFE 
Act's consultation program must develop work site-specific 
safety and health programs before they receive a Certificate of 
Compliance. The new language in the SAFE Act regarding these 
``safety plans'' was taken directly from one of OSHA's 
successful consultation programs, the Safety and Health 
Achievement Recognition Program, or SHARP. SHARP is a 
consultation-based program available to businesses who want to 
work with an OSHA consultant and develop a safety and health 
program in return for 1 year free from programmed 
inspections.56 The key to this program's success is 
that it is voluntary, it helps employers achieve compliance by 
working with a trained safety consultant, and it contains 
incentives to encourage employers to seek solutions to safety 
and health hazards.
---------------------------------------------------------------------------
    \56\ www.osha.gov/oshprogs.consult.html
---------------------------------------------------------------------------
    The outstanding results of the SHARP program will be 
amplified by its inclusion in the SAFE Act. Due to the limited 
resources that OSHA dedicates to consultation, very few 
employers are able to take advantage of the SHARP program. 
However, under the SAFE Act, the safety benefits of the program 
will be available to every employer on a voluntary basis.
    An important and additional benefit of including OSHA's 
voluntary, consultation-based SHARP program in the SAFE Act is 
that it strikes a compromise. OSHA has been moving forward in 
promulgating a mandatory safety and health program rule 
applicable to all employers regardless of size or type. The 
rule is not only mandatory but it is also a ``performance-
based'' rule, the elements of which are almost completely 
subjective in nature. For example, the rule requires a program 
``appropriate'' to conditions in the workplace, an employer to 
evaluate the effectiveness of the program ``as often as 
necessary'' to ensure program effectiveness, and ``where 
appropriate,'' to initiate corrective action. 57
---------------------------------------------------------------------------
    \57\ See OSHA Draft Proposed Safety and Health Program Rule, 29 CFR 
1900.1, Docket No. S&H-0027, October 1998.
---------------------------------------------------------------------------
    Employers are justifiably concerned because the draft rule 
offers no definition of these terms to help them in their 
compliance efforts. They are also concerned because there is no 
objectivity to the rule. OSHA is answering these concerns by 
promising that their inspectors will be fair in their 
application of the rule and flexible in their interpretations. 
That does not satisfy employers who have safety and health 
programs in place or are working to develop such programs in a 
way that meets with OSHA's approval without the threat of 
fines. As stated by Brian Landon, a small business owner who 
participated in OSHA's Small Business Advocacy Review Panel 
process for OSHA's draft safety and health program rulemaking,

          I find the vague language and terms in the proposed 
        rule troubling and scary. Very small business employers 
        would be overwhelmed implementing the vague and 
        sweeping mandates that are part of the 
        rule.58
---------------------------------------------------------------------------
    \58\ Small Business Advocacy Review Panel Report, OSHA's draft 
proposed rule on safety and health programs, January 4, 1999, (comments 
of Brian Landon, owner, Landon's Carwash and Laundry) at 4.

    Many others have also questioned OSHA's mandatory draft 
rule, which, as Edwin Folke, former Chairman of the 
Occupational Safety and Health Review Commission has pointed 
out, has a questionable and inadequate scientific 
record.59 The alternative, he testified, is the SAFE 
Act's voluntary standard.
---------------------------------------------------------------------------
    \59\ The New SAFE Act Hearing (Folke Testimony), supra note 11, at 
75.

          I also believe that a benefit of the SAFE Act is that 
        it would provide a voluntary mechanism for employers to 
        implement a safety and health program, which is 
        tailored to that employer's unique facility and work 
        processes. In addition, it would allow employers a way 
        to measure the effectiveness of that program with the 
        assistance of a knowledgeable, certified consultant. 
        The kind of proactive consultation program that the 
        SAFE Act envisions can be implemented without an undue 
        burden on OSHA, either financially or in terms of 
        personnel.60
---------------------------------------------------------------------------
    \60\ Ibid.

    The SAFE Act combines the need to promote a safety and 
health program standard that is sanctioned by OSHA with the 
need of the employer to know specifically how to achieve 
regulatory compliance. By keeping the SAFE Act consultation-
based, employers will have full access to personalized 
compliance assistance. Neither will there be a threat of 
subjective enforcement under the SAFE Act because good-faith 
employers cannot be penalized for good- faith compliance 
efforts. The SAFE Act is the workable alternative to encourage 
and implement safety and health programs that work to improve 
conditions for America's workers.

The New SAFE Act: Other changes

    Another important change to the SAFE Act is that the bill 
has been streamlined to strengthen the consultation theme by 
removing provisions that do not relate to consultation. The 
importance of such streamlining is that, by highlighting 
consultation, the SAFE Act is able to maintain a one-theme 
message that consultations work and that their availability 
should be expanded to more employers.
    During markup of a prior version of the SAFE Act in the 
105th Congress (S. 1237), of the minority's nine intents to 
file amendments related directly to the SAFE Act, the SAFE Act 
of the 106th Congress (S. 385) adopted over seven of those nine 
intents. When S. 385 was introduced this Congress, three entire 
sections had been removed, penalties were strengthened for bad-
acting consultants, and OSHA's right to inspect was clarified. 
And as specified directly above, S. 385 also requires 
participating employers to implement a safety and health plan 
using language taken directly from OSHA's SHARP program. These 
massive changes and overhaul demonstrate that the majority has 
considered and accommodated most of the minorities concerns. 
However, every time the majority has made such efforts, the 
minority has moved the goal post.
    The reasonableness of this year's SAFE Act cannot be 
denied. In addition to the changes made to the third party 
consultation section of the bill, the SAFE Act contains a 
number of well-reasoned programs that either parallel or 
improve OSHA's current programs.

    Continuing Education and Professional Certification for Certain 
        Occupational Safety and Health Administration Personnel

    This section of the bill requires that the OSHA personnel 
performing inspections, consultations and standards 
promulgation functions must obtain private sector professional 
certification within 2 years of initial hire at OSHA. In 
addition, OSHA employees who carry out inspections or 
consultations under this section must also receive ongoing 
professional education and training every 5 years of 
employment. This makes obvious sense because under current 
regulations, the only formal training required for becoming an 
OSHA inspector is 6 to 7 weeks of classroom instruction at 
OSHA.61 Such minimal requirements pale in comparison 
to the requirements to become a private safety professional. To 
become a Certified Industrial Hygienist (CIH), for example, 
individuals must have a bachelor's degree in science, at least 
5 years employment in the field, and have passed a 
comprehensive examination.62 Board certified safety 
professionals (CSP) and safety engineers must also have a 
bachelor's degree, have at least 4 years professional safety 
experience or an advanced degree or certification, and pass a 
comprehensive national examination.63
---------------------------------------------------------------------------
    \61\ Watchman letter, supra note 27, at 2.
    \62\ American Board of Industrial Hygiene certification handbook, 
at 7-12.
    \63\ Board of Certified Safety Professionals, Certified Safety 
Professional Candidate Handbook, May 1997, at 3-5 (See Appendix II).
---------------------------------------------------------------------------
    Nonetheless, the SAFE Act, which includes the provision 
which would ensure that OSHA is better-trained and able to meet 
the safety needs of an ever-changing work force, was opposed by 
the minority.

                      Expanded Inspection Methods

    This section of the bill, which would empower OSHA in its 
own discretion to investigate complaints other than through an 
on-site inspection (such as by phone or fax), was also opposed 
by the minority even though it directly parallels one of OSHA's 
own successful programs. OSHA's ``New Nonformal Complaint 
Process,'' or ``phone/fax'' procedure, provides as follows:

        OSHA has reached an important milestone in building on 
        its successes in process improvement * * * [A] new 
        nonformal complaint process has been developed and 
        piloted, demonstrating significant reductions in 
        complaint turnaround time. By responding to nonformal 
        complaints with the telephone and fax, the pilot 
        offices have been [sic] able to reduce the time to 
        achieve hazard abatement by more than 75%. * * * We are 
        now prepared to implement the new nonformal complaint 
        pilot program in all federal offices.64
---------------------------------------------------------------------------
    \64\ www.osha-slc.gov (Emphasis added).

    Under the phone/fax provision in the bill, such inspections 
would be made for all complaints relating to safety and health 
just as currently occurs at OSHA. The minority, however, 
opposed the provision and offered an amendment that would allow 
an employee to make complaints for reasons other than safety 
and health. The committee opposes efforts that would force 
OSHA, the agency dedicated solely to preserving worker safety 
and health, to use its limited budget to respond to non safety 
and health related complaints. The minority would not support 
the phone/fax provision without this expansive language, and 
thus, opposed the SAFE Act's phone/fax provision despite the 
fact that it is current OSHA policy.

                 work site-specific compliance methods

    This section of the bill allows OSHA citations to be 
vacated if an employer can demonstrate that the employees of 
such employer are protected by alternative methods that equal 
or are more protective than the OSHA regulation. It was also 
opposed by the minority. In the minority views of the committee 
report on the SAFE Act during the 105th Congress, the minority 
stated as follows:

          [This section] of the bill would create an entirely 
        new statutory defense to an OSHA citation, based on an 
        employer's demonstration that employees were protected 
        by alternative methods as protective or more protective 
        than those required by the standard the employer 
        violated.65

    \65\ Safety Advancement for Employees Act of 1997, S. Rep. No. 105-
159, 105th Cong., 2nd Sess (1998) at 43.

    This section, however, does not create an ``entirely new 
statutory defense'' to an employer under OSHA.'' Far from it. 
In fact, this section is a mere offshoot of current OSHA 
---------------------------------------------------------------------------
policy, which states as follows:

          At times employers may not be able to comply fully 
        with a new safety or health standard in the time 
        provided due to a shortage of personnel, materials or 
        equipment. In situations such as these, employers may 
        apply to OSHA for a temporary variance from the 
        standard. In other cases, employers sometimes are using 
        methods, equipment or facilities that differ from those 
        prescribed by OSHA, but that the employer believes are 
        equal to or better than OSHA's requirements. In 
        applying for a permanent variance, the employer must be 
        able to show that his/her facility or method of 
        operation provides employee protection ``at least as 
        effective as'' that required by OSHA's 
        standard.66
---------------------------------------------------------------------------
    \66\ www.osha-slc.gov

    Nonetheless, despite the fact that the SAFE Act parallels 
OSHA's current policy, the minority remains opposed.

                      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 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 can 
confront an excessive waiting period in some States. Under this 
pilot program, small businesses could still seek a free 
consultation, or opt for an expedited consultation in a 
participating State.

                     voluntary protection programs

    In addition to providing cooperative initiatives for 
employers to establish employer/employee participation programs 
and seek third party consultation services, S. 385 would also 
codify Voluntary Protection Programs (VPP) created by OSHA in 
1982. VPP currently recognizes larger work sites for their 
extraordinary commitment to health and safety. After an 
extensive work site review, OSHA awards VPP status to work 
sites with effective health and safety programs and superior 
lost workday records. Such work sites are removed from OSHA's 
programmed inspection list.
    By codifying the 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, S. 385 would 
also require OSHA to encourage small businesses (as the term is 
defined by the Administrator of the Small Business 
Administration) to participate in the voluntary protection 
program by carrying out assistance and outreach initiatives and 
to develop program requirements that address the needs of small 
businesses.

               prevention of alcohol and substance abuse

    This section of the SAFE Act allows employers to establish 
drug and alcohol testing programs. The effect that drugs and 
alcohol have on the workplace is staggering. In 1992, for 
example, the Bureau of Labor Statistics' Census of Fatal 
Occupation Injuries (CFOI) program collected 1,355 toxicology 
reports from 43 States and the District of Columbia, roughly 
one report for every four of the 1992 fatalities. In about one-
sixth of the cases for which toxicology reports were available, 
fatally injured workers tested positive for toxic substances, 
most frequently alcohol followed by cocaine and 
marijuana.67
---------------------------------------------------------------------------
    \67\ William M. Marine, M.D., and Tracy Jack, Analysis of 
Toxicology Reports from the 1992 Census of Fatal Occupational Injuries, 
Compensation and Working Conditions, October 1994.
---------------------------------------------------------------------------
    What's more, even the Department of Labor encourages 
employers to establish drug and alcohol testing programs based 
on its finding that drug and alcohol use by employees has a 
hugely negative effect on worker safety and health. Some of 
DOL's findings are as follows:
     Seventy-three percent of all current drug users 
aged 18 and older (8.3 million adults) were employed in 1997. 
This includes 6.7 million full-time workers and 1.6 million 
part-time workers.68
---------------------------------------------------------------------------
    \68\ www.dol.gov [quoting United States Department of Health and 
Human Services, National Household Survey on Drug Abuse, (Rockville, 
MD, August 1998)].
---------------------------------------------------------------------------
     The National Institutes of Health recently 
reported that alcohol and drug abuse cost the economy $246 
billion in 1992.69
---------------------------------------------------------------------------
    \69\ www.dol.gov [quoting National Institute on Drug Abuse and the 
National Institute on Alcoholism and Alcohol Abuse, The Economic Costs 
of Alcohol and Drug Abuse in the United States. (Rockville, MD, 1992)].
---------------------------------------------------------------------------
     In 1990, problems resulting from the use of 
alcohol and other drugs cost American businesses an estimated 
$81.6 billion in lost productivity due to premature death and 
illness; 86% of these combined costs were attributed to 
drinking.70
---------------------------------------------------------------------------
    \70\ www.dol.gov [quoting Substance Abuse and Mental Health 
Services Administration, United States Department of Health and Human 
Services, Sustance Abuse and Mental Health Statistics Sourcebook, 3 
(Rockville, MD, May 1995)].
---------------------------------------------------------------------------
     A survey of callers to the national cocaine 
helpline revealed that 75 percent reported using drugs on the 
job, 64 percent admitted that drugs adversely affected their 
job performance, 44 percent sold drugs to other employees, and 
18 percent had stolen from co-workers to support their drug 
habit.71
---------------------------------------------------------------------------
    \71\ www.dol.gov (quoting National Cocaine Helpline. ``1-800-
COCAINE.'' Summit, N.J. 1987).
---------------------------------------------------------------------------
     Alcoholism causes 500 million lost workdays each 
year.72
---------------------------------------------------------------------------
    \72\ www.dol.gov [National Association of Treatment Providers, 
Treatment is the Answer: A White Paper on the Cost-Effectiveness of 
Alcoholism and Drug Dependency Treatment (Laguna Hills, CA. March 
1991)].

    To respond to the growing problem of drug and alcohol abuse 
in the workplace, the DOL has recommended that employers 
implement drug testing programs.73 The committee has 
responded to this by including a strong but voluntary drug and 
alcohol testing program section in the SAFE Act that would give 
OSHA 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. Indeed, even the testimony 
of Assistant Secretary Jeffress was favorable with regard to 
the voluntary drug testing program established in the SAFE 
Act.74
---------------------------------------------------------------------------
    \73\ www.dol.gov 
    \74\ The New SAFE Act Hearing, (Jeffress testimony), supra note 43, 
at 7 (attachments section).
---------------------------------------------------------------------------
    The minority, however, has opposed these efforts in the 
past, stating that ``[i]nserting OSHA into this process seems 
unnecessary and unwise.'' 75 This despite the fact 
that drug and alcohol abuse on the job is not only common, but 
is in fact one of the leading causes of workplace accidents and 
fatalities.
---------------------------------------------------------------------------
    \75\ Safety Advancement for Employees Act of 1997, S. Rep. No. 105-
159, 105th Cong., 2nd Sess (1998) at 50.
---------------------------------------------------------------------------

                  discretionary compliance assistance

    Under current law, inspectors are not permitted to consult 
with an employer on how to abate a hazard, but are required to 
issue a citation. The SAFE Act would give inspectors the 
ability to provide inspectors with technical or compliance 
assistance in correcting a violation discovered during an 
inspection or investigation without issuing a citation. This 
consultative flexibility would be entirely discretionary on the 
part of the inspector and would not undermine the agency's 
enforcement responsibilities.
    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 carriers no 
penalty) under sec. 9(a) of the act for violations that have 
``no direct or immediate relationship to safety or health.'' 
76 The committee expects OSHA inspectors to use good 
judgment. 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.
---------------------------------------------------------------------------
    \76\ Occupational Safety and Health Act, 29 USC 651(b)(1) (1970).
---------------------------------------------------------------------------

The constitutionality of the SAFE Act

    On April 29, 1999, Senator Kennedy received a letter from 
the Department of Justice (DOJ) which he shared with the 
committee regarding DOJ's constitutional concerns with the 
Safety Advancement for Employees (``SAFE'') Act of 1999. The 
letter offered a discourse on the separation of powers and 
delegation doctrines under the Constitution, and concluded that 
the SAFE Act likely violates both constitutional mandates. This 
letter, however, is inaccurate.
    It is critical to understand that the arguments proffered 
in the DOJ's letter against the constitutionality of the SAFE 
Act are premised entirely on DOJ's interpretation of what 
authority the consultant actually has. Indeed, if DOJ's 
interpretation of the third party consultant's role were 
factual, most of their analysis could be supported. But because 
the interpretation is wholly incorrect, both the factual and 
legal premise upon which the DOJ bases its argument must be 
strongly questioned.
    According to the letter, the underlying reason that the DOJ 
finds the SAFE Act to be unconstitutional is that the third 
party consultants envisioned by the bill would be acting in the 
role of surrogate OSHA compliance officers, inspecting and 
finding where and how an employer has broken OSHA regulations 
without having the authority to do so. According to the DOJ, 
such activities are ``central executive functions'' and go to 
the heart of what ``executive agencies typically do.'' 
77 The SAFE Act, states the DOJ letter, is likely 
unconstitutional because it ``delegates to private entities 
outside the Executive branch substantial authority to execute 
the laws,'' 78 and as such, ``implicates the 
Secretary's power to make case-by-case determinations as to 
whether admittedly applicable law has been violated'' 
79 and ``constrain[s] the executive branch's 
implementation of the law.'' 80 The letter even goes 
so far as to state that the bill would ``eliminat[e] the 
executive's control over the enforcement of the law.'' 
81
---------------------------------------------------------------------------
    \77\ Letter from Jon P. Jennings, Acting Assistant Attorney 
General, Department of Justice, to Senator Edward M. Kennedy, Ranking 
Member, U.S. Senate Health, Education, Labor and Pensions Committee, 
(April 29, 1999), at 2.
    \78\ Id. at 2.
    \79\ Id. at 4.
    \80\ Id. at 2.
    \81\ Id. at 5.
---------------------------------------------------------------------------
    This analysis, however, misses the point entirely. The 
fundamental role of the SAFE Act consultant is not to 
``implement the legislative mandate'' 82 by imposing 
penalties for noncompliance with the OSH Act as stated by the 
DOJ. Instead, third party consultants are involved only to 
exempt ``good faith'' employers from a 1 year civil penalty. By 
passing the SAFE Act, Congress would simply be exercising its 
clear and unquestionable authority to enhance and reduce OSHA 
penalties.
---------------------------------------------------------------------------
    \82\ Id. at 2.
---------------------------------------------------------------------------
    There are sufficient examples where Congress has acted to 
exercise this authority for the purpose of establishing a 
penalty ceiling, for mitigating penalties, or for exempting 
from civil penalties altogether. It is clear, for example, that 
Congress may not be prohibited from establishing civil 
penalties for environmentally harmful acts. 83 In 
addition, Congress has acted within its authority to increase 
the maximum civil penalty limits for a violation of the Mine 
Act 84 and the Occupational Safety And Health Act. 
85 Of even greater relevance, in 1996, Congress 
passed the Small Business Regulatory Enforcement and Fairness 
Act (SBREFA), which instructed each agency regulating the 
activities of small businesses to ``establish a policy or 
program within one year of enactment * * * to provide for the 
reduction, and under the appropriate circumstances waiver, of 
civil penalties for violations of a statutory or regulatory 
requirement.'' 86 The Environmental Protection 
Agency (EPA) responded to SBREFA by promulgating Incentives For 
Self-Policing 87, a policy that waives or mitigates 
gravity-based civil penalties for those companies who conduct 
their own audit and disclose and correct violations. It was 
unquestionably EPA's intent--flowing from the intent of 
Congress in passing SBREFA--to promote penalty waivers and 
compliance assistance and show ``leniency for good actors in 
order to ensure continued protection of the American public and 
of our Nation's environment.'' 88 It is plain that 
Congress, and the agencies following Congress' lead, have the 
authority to show ``leniency for good actors'' by mitigating 
and waiving penalties.
---------------------------------------------------------------------------
    \83\ United States v. General Motors Corp., 403 F. Supp. 1151 
(1975). See also Federal Water Pollution Control Act (Clean Water Act) 
Amendments of 1972, 33 U.S.C.A. Sect. 1321(b)(6).
    \84\ See Federal Mine Safety And Health Act Amendments of 1990, 30 
U.S.C.A. Sect. 820(a).
    \85\ 29 U.S.C.A. Sect. 666 (e).
    \86\ Small Business Regulatory Enforcement Fairness Act of 1996, 
Sec. 223.
    \87\ 60 Fed. Reg. 66706, Dec. 22, 1995
    \88\ Department of Justice, Environmental And Natural Resources 
Division Statement Before The Senate Subcommittee On Administrative 
Oversight And The Courts, May 21, 1996, p.4. Since its issuance, EPA's 
policy has been widely used, generating disclosure of violations from 
an estimated 470 entities at more than 1,880 facilities. The policy has 
also ``encouraged companies to expand their use of environmental 
auditing and compliance management systems.'' EPA, Office of Regulatory 
Enforcement, Audit Policy, Vol. 4, Number 1. See also 64 Fed. Reg. 
26745 (May 17, 1999).
---------------------------------------------------------------------------
    The DOJ's letter also implicates the Supreme Court case of 
Morrison v. Olson to bolster its argument that the SAFE Act 
violates the separation of powers and delegation 
doctrines.89 This case, however, has no application 
whatsoever to the relevant sections of the SAFE Act. Morrison 
dealt with investigative and prosecutorial authority in 
criminal cases, and, indeed, the committee fully agrees that 
criminal law enforcement and prosecutorial authority should be 
left solely to the executive branch. But again, the SAFE Act 
does not eliminate the control of the executive branch over law 
enforcement. The SAFE Act simply prevents penalties on certain 
civil violations for good faith actors. If an OSHA inspector 
discovers that the employer did not make a good faith effort to 
remain in compliance, if there has been a fundamental change in 
the hazards of the workplace, or if the employer has engaged in 
behavior rising to criminal levels, the inspector may 
vigorously pursue all penalties available. The third party 
audit provision in no way immunizes the employer from 
recklessness or intentional misconduct. Nor does it in any way 
create an evidentiary privilege which would stymie OSHA 
investigations into wrongdoing. The OSHA inspector may continue 
his inspections unabated and uninterrupted.
---------------------------------------------------------------------------
    \89\ Morrison v. Olson, 487 U.S 654 (1988).
---------------------------------------------------------------------------
    In a similar vein, the Supreme Court has upheld the 
constitutionality of the Professional Standards Review Law 
90 in which Congress designated private health 
organizations with the authority to regulate their peers, 
91 subject at least theoretically, to Health and 
Human Services control.92 In fact, authorities have 
noted that the only enactment of Congress ever invalidated for 
delegating too much authority outside Congress was the 
Bituminous Coal Act of 1935 in the case of Carter v. Carter 
Coal Company.93 In overturning this law, the Supreme 
Court in Carter held that the government intrusted too much 
power in one party to regulate the private property of 
another--including competitors--by allowing coal producers and 
miners to fix maximum hours of labor, minimum wages, penalize 
defectors with a ``prohibitive'' tax and prohibition from 
government contracting.94 It is without question 
that the third party consultation provision of the SAFE Act in 
no way infringes on interstate commerce or fosters unfair 
methods of competition as the law in question was held to do in 
Carter.
---------------------------------------------------------------------------
    \90\ 42 U.S.C. 1320c.
    \91\ Assoc. of Am. Physicians and Surgeons v. Weinburger, 395 F. 
Supp. 125 (1975), aff'd without opinion, 423 U.S. 975 (1975).
    \92\ Harold J. Krent, Fragmenting the Unitary Executive: 
Congressional Delegations of Administrative Authority Outside the 
Federal Government, 85 Nw. U. L. Rev. 62, 96, n. 108 (1990).
    \93\ Carter v. Carter Coal Company, 298 U.S. 238 (1936).
    \94\ Id. at 311. The Court invalidated the Coal Act as a violation 
of the commerce clause and due process clause. See also Krent Article, 
85 Nw. U. Law Rev. at 88, fn. 81.
---------------------------------------------------------------------------
    The fundamental issue under the SAFE Act is whether OSHA's 
mandate to ``encourag[e] employers and employees in their 
efforts to reduce the number of occupational safety and health 
hazards'' is bolstered by providing positive incentives for 
voluntary compliance and remediation. The issue is not whether 
such incentives should be provided in lieu of enforcement for 
those who shirk their responsibility under the law. Passing the 
SAFE Act will have no effect whatsoever on OSHA's ability to 
punish the bad actors; the SAFE Act only applies to the good 
actors who can have penalties waived for good faith efforts.

                             V. Conclusion

    For 2 years, the committee has attempted to modernize OSHA 
and make it more effective. And for 2 years, the misinformation 
campaign about the SAFE Act has persisted. There have been 
reports alleging that the SAFE act is an attempt to dismantle 
OSHA, articles that maintain that employers will be able to buy 
immunity from penalties despite non compliance, and remarks 
that OSHA officials are more ethical than private professionals 
because ``the private sector is driven by the market, not a 
mandate to protect employee safety and health.'' 95 
This despite the fact that the committee has listened and 
responded to the minority's concerns. The SAFE Act has 
incorporated major changes to address the concerns of the 
minority: it has been substantially narrowed in scope, it has 
tightened controls on third party consultants, and it now 
includes much of OSHA's own SHARP program language. The 
minority has yet to take one step toward compromise.
---------------------------------------------------------------------------
    \95\ The New SAFE Act Hearing (Jeffress testimony), supra note 43, 
at 16.
---------------------------------------------------------------------------
    What keeps happening is that as the committee talks about 
what has been changed, or dispels myths about the bill, the 
minority changes the subject. They say they are opposed to one 
provision, and then when it is removed, they say that they are 
opposed to another. The committee is tired of playing this 
game. The new SAFE Act demonstrates the committee's commitment 
to compromise, but it cannot continue to compromise over and 
over again while the bar is moved higher and higher, when no 
constructive suggestions are received, and when compromise is 
not reciprocated.
    There is no perfect fix to the crisis that is facing 
America's workers, but the SAFE Act comes close. What the SAFE 
Act would do is tap the thousands of safety and health 
professionals who have the highest level of training and have 
them work with employers to get them into compliance with 
safety laws. If the employer gets into compliance with the 
law--and not before--that employer can receive a certificate of 
compliance which will exempt him from civil penalties only for 
1 year. However, at all times and under all circumstances, OSHA 
remains free to inspect these work sites, and if that employer 
is not acting in ``good faith'' as determined by OSHA, that 
employer is removed from the program. If the consultant is not 
acting in good faith, he loses a career. Both can be subject to 
monetary penalties for bad behavior as well. It's as simple as 
that.
    The SAFE Act is supported by testimony from two former OSHA 
inspectors, safety professionals, small businesses, the former 
Chairman of the Occupational Safety and Health Review 
Commission, victims rights advocates, and fathers of sons 
killed in workplace accidents. For those in the minority who 
believe that the SAFE Act is so wrong that it is beyond 
passage--beyond even compromise--it should be asked why so many 
diverse groups think that the SAFE Act is a good idea. It 
should be asked why people like Charles LeCroy and Ron Hayes 
who have lost children in horrific workplace accidents and have 
so much at stake in the fight to keep workers safe say that the 
SAFE Act is a good bill that will save workers lives. It simply 
is not possible that everyone who has signed on in favor of the 
SAFE Act is wrong about what it will take to improve worker 
safety. And by shutting down effective discussion on the bill 
and by failing to take constructive action, it is the American 
worker who loses out.
    The SAFE Act is, at its heart, a bill that takes a step 
away from the adversarial approach to worker safety that 
virtually everyone agrees is without benefit or substantive 
result. It is a step toward a proactive approach to achieve 
safer workplaces that involves employees, employers and OSHA. 
By striking a new and healthier balance for America's workers, 
it will result in tens of thousands of employers getting expert 
safety consultations; it will allow OSHA to target its 
resources where they are most needed; and unlike other OSHA 
reform bills, it preserves in full OSHA's power to inspect any 
workplace and order abatement as it sees fit.

                    VI. Section-by-Section Analysis


Section 3: Third party consultation provision

    Establishes a program to allow employers to voluntarily 
enlist the help of highly-trained safety and health 
professionals to create safe and healthful work sites for the 
benefit of the American worker. Employers who fully utilize the 
service of qualified safety and health professionals under this 
program will be exempt for a period of 1 year from any civil 
penalty prescribed under the OSH Act. This does not affect the 
right of OSHA to inspect and investigate workplaces covered by 
a certificate of compliance.

Section 4: Establishment of special advisory committee

    Provides that no later than 6 months after the date of 
enactment, the Secretary will establish an advisory committee 
pursuant to the Federal Advisory Committee Act for the purpose 
of advising and making recommendations to the Secretary with 
respect to the establishment and implementation of 
certification standards for individuals participating in third 
party audit and evaluation programs. The committee will be 
broadly represented by employees (3), employers (3), the 
general public (2), and states with safety and health plans 
(1). All committee members are required to have expertise in 
workplace safety and health.

Section 5: Continuing education and professional certification for 
        certain OSHA personnel

    Requires the federal employees charged with enforcing the 
OSH Act and crafting new standards be capable and qualified. 
Calls on all OSHA personnel performing inspection, consultation 
and standards promulgation functions requiring knowledge of 
safety or health disciplines to obtain private sector 
professional certification within 2 years of initial hire at 
OSHA. In addition, OSHA personnel who carry out inspections or 
consultations under this section must also receive ongoing 
professional education and training every 5 years of 
employment.

Section 6: Expanded inspection methods

    Empowers OSHA, entirely in its own discretion, to 
investigate complaints other than through an on-site 
inspection. Some complaints may only take a phone call or 
written inquiry to clear up; this provision will allow OSHA to 
have the discretion to save its inspectors' time for 
investigating the most serious of problems.

Section 7: Work site specific compliance methods

    All workplaces are unique and require individual worker 
safety solutions. In this vein, citations in violation of OSHA 
regulations will be abandoned if an employer can demonstrate 
that the employees of such employer were protected by 
alternative methods equally or more protective of the workers' 
safety and health.

Section 8: Technical Assistance Program

    It is often the case that employers who request a free 
consultation from a State plan wait for a period of 16 to 18 
months prior to receiving the service. Meanwhile, the employer 
is left vulnerable to routine OSHA inspection and fines.
    This section broadens the availability of consultation 
services by states and OSHA to employers who voluntarily seek a 
safe and healthful workplace. It codifies OSHA's current 
consultation policy in cooperation with states with a state 
safety and health plan by establishing a ``pilot'' program 
within 90 days of enactment in 3 states for a period of 2 years 
to provide expedited consultation services to small business 
employers (defined by the Small Business Administration). OSHA 
may charge a nominal fee for such expedited consultation 
services. Under the pilot program, OSHA must provide 
consultation services no later than 4 weeks after the 
employer's request.
    To further enhance such services, this section also 
requires that 15 percent of the total amount of annual funds 
appropriated to OSHA be used for education, consultation, and 
outreach efforts.

Section 9: Voluntary protection programs

    Codifies OSHA's Voluntary Protection Program (VPP) to 
further establish cooperative agreements that encourage 
comprehensive safety and health management systems. This 
section requires the Secretary of Labor to encourage small 
business participation in the VPP program by providing outreach 
and assistance initiatives and developing program requirements 
that address the needs of small businesses.

Section 10: Prevention of alcohol and substance abuse

    The bill addresses the fact that preventing drug- and 
alcohol-related deaths and injuries is imperative to increasing 
worker safety and health in America by permitting employers to 
establish drug and alcohol abuse testing programs.
    Substance abuse testing programs will permit the use of on-
site or off-site urine screening or other recognized screening 
methods, so long as the confirmation tests are performed in a 
lab subject to subpart B of the mandatory guidelines for 
federal workplace drug testing programs, State certification, 
the Clinical Laboratory Improvements Act, or the College of 
American Pathologists. The alcohol testing 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 provisions prescribed under this section preempt any 
provisions of State law to the extent that such State law is 
inconsistent with this section.

Section 11: Discretionary compliance assistance

    Would permit, not require, OSHA inspectors to issue 
warnings in lieu of citations in appropriate situations. 
Current law fails to provide OSHA with this flexibility. Under 
this section, OSHA inspectors could rely on good judgment; 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.

             VII. Application of Law to Legislative Branch

    Section 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. 385 
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. 385 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. 385 
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. 385 amends 
sections 8(f) and 9 of the OSH Act. Therefore, the changes made 
by S. 385 to sections 8(f) and 9 apply to the legislative 
branch.

                   VIII. Regulatory Impact Statement

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

                           IX. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 27, 1999.
Hon. James M. Jeffords,
Chairman, Committee on Health, Education, Labor, and Pensions, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 385, the Safety 
Advancement for Employees Act of 1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Cyndi 
Dudzinski (for federal costs), Susan Sieg (for the state and 
local impact), and Theresa J. Devine (for the private-sector 
impact).
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 385--Safety Advancement for Employees Act of 1999

    Summary: S. 385 would direct the Secretary of Labor to 
establish programs to help employers comply with the 
Occupational Safety and Health Act and avoid citations. Those 
programs would include third-party consultation services and 
expedited consultation services to small businesses.
    Implementing the bill would result in additional costs to 
the Occupational Safety and Health Administration (OSHA). The 
precise amounts would depend on how provisions in the bill 
would be implemented and the response to the new programs. CBO 
estimates such costs could be several million dollars over the 
first two years, and about $3 million per year thereafter, 
subject to the availability of appropriations. In addition, 
enactment of S. 385 would eliminate fines levied by OSHA in 
cases where companies demonstrate that they have implemented a 
safety measure at least as stringent as the OSHA regulation 
being violated. This could decrease the total amount of fines 
collected; therefore, pay-as-you-go procedures would apply. 
However, CBO estimates the amounts involved would be less than 
$500,000 a year.
    S. 385 contains an intergovernmental mandate as defined in 
the Unfunded Mandates Reform Act (UMRA). However, that mandate 
would impose no costs on state, local, or tribal governments. 
Other provisions of the bill would impose costs on state 
governments, but such costs would be incurred voluntarily. S. 
385 contains a private-sector mandate on workers related to 
testing for alcohol or controlled substances, but CBO estimates 
that the direct costs to workers would be negligible.
    Estimated cost to the Federal Government: For purposes of 
this estimate, CBO assumes that the necessary amounts will be 
appropriated for each year. The estimate is based on 
information from OSHA and from professional safety and health 
associations. Because this bill would create several new 
programs within OSHA, CBO cannot provide a precise estimate. 
The costs of these provisions would depend on how the new 
programs are implemented and on the extent to which employers 
and safety and health professionals participate in them.

Third-Party Consultation Services Program and Special Advisory 
        Committee

    Sections 3 and 4 would require the Secretary of Labor to 
provide third-party consultation services within 18 months of 
enactment. Under this program, an employer could hire a 
consultant to inspect the workplace and write a consultation 
report identifying violations and providing for a safety and 
health program to be established and maintained by the 
employer. A consultant would give an employer that met the 
requirements of such a report a certificate of compliance that 
would exempt that employer from any civil penalty for a period 
of one year. The exemption would not apply if the employer did 
not make a good faith effort to remain in compliance as 
required under the declaration of compliance or to the extent 
that there was a fundamental change in the hazards of the 
workplace. The exemption could be extended for another year if 
the employer passed a re-inspection by a certified consultant.
    To implement this program, the Secretary would establish an 
advisory committee to provide recommendations for third-party 
consultation services. The Secretary also would be responsible 
for approving consultants and maintaining a public registry of 
the names of those who are approved. The Secretary could revoke 
the status of a qualified consultant or employer if that 
individual or employer fails to meet the requirements of the 
program.
    Implementing sections 3 and 4 could increase or decrease 
spending by OSHA. On the one hand, OSHA would pay for the 
meetings and support staff for the advisory committee. OSHA 
also would need additional staff to process the applications of 
individuals that apply to be certified as consultants, maintain 
a public data bank containing the names of certified 
individuals, and monitor practicing consultants to ensure 
compliance. On the other hand, the same number of workplaces 
could be inspected using fewer OSHA staff, because CBO expects 
that OSHA would rarely inspect a workplace that had received a 
certificate of compliance. On balance, CBO expects the net 
impact of implementing these provisions would likely be a cost 
of several million dollars over the 2000-2004 period, subject 
to appropriation of the necessary amounts.
    Potential Costs. Most of the costs for implementing 
sections 3 and 4 would arise in processing applications and 
policing the program to prevent fraud and abuse. Without 
knowing the required qualifications or the demand for 
consultants, CBO cannot estimate how many individuals would 
apply for certification as consultants. For example, if 25,000 
people applied, OSHA would spend $6 million dollars over the 
first few years to process applications. Under this scenario, 
CBO estimates that OSHA would employ 32 full-time employees at 
about $90,000 a year (in 2000 dollars) to process 8,000 
applications per year. CBO estimates that maintaining the 
program after the initial pool of applications is processed and 
policing the program to ensure proper compliance would cost $1 
million annually.
    Potential Savings. If OSHA otherwise would have inspected a 
workplace that successfully participated in the consultation 
program and S. 385 freed those enforcement efforts to be 
applied to another establishment, then these provisions could 
reduce the resources needed at OSHA to maintain the same 
inspection status for each workplace. That result would occur 
if giving employers the option to hire private consultants 
reduces the number of workplaces that OSHA would need to 
inspect. CBO estimates, however, that any such decrease would 
be negligible for several reasons. 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 certificates of compliance. 
Third, a certification would not exempt employers from 
inspections. So until the program was well-established, OSHA 
would still inspect high-hazard workplaces whether or not they 
received a certificate of compliance under the new program of 
third-party consultation services.

Education and certification for OSHA personnel

    Section 5 of S. 385 would require federal employees 
responsible for enforcing the Occupational Safety and Health 
Act to meet the same eligibility requirements as a qualified 
individual under the consultation program created by sections 3 
and 4. 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. Because the bill would allow the 
Secretary to determine criteria by which current employees 
would qualify, however, CBO estimates this provision would 
result in minimal additional costs.

Worksite-specific compliance methods

    Section 7 would require citations to be waived if employers 
could demonstrate that employees were protected by methods at 
least as stringent as the OSHA regulation being violated. By 
giving employers more leverage and thereby increasing their 
incentive to contest OSHA citations, this provision could 
increase the proportion of citations that are contested and the 
amount of resources OSHA would devote toward litigation. Under 
current law, about 9 percent of cases involving a citation are 
contested and OSHA spends about 5 percent or $6 million a year 
of its enforcement resources on such cases. The response to 
this provision and its effect on OSHA's resources cannot be 
predicted. Based on information from OSHA, this could increase 
the number of cases by about 25 percent. If this did occur, CBO 
estimates it would increase the amount OSHA spends on 
litigation by $2 million a year.

Technical Assistance Program

    Section 8 would require the Secretary to establish a pilot 
program that would provide expedited consultation services to 
small business in return for a nominal fee. The program would 
occur in three states for a maximum period of two years. Within 
90 days of the termination of the pilot project, the Secretary 
would submit a report to the Congress evaluating the pilot 
program. In addition, the bill would codify the existing state 
consultation program, but reduce the amount OSHA reimburses for 
travel expenses by 10 percent. CBO estimates that these 
provisions would not have a significant effect on federal 
spending.

Prevention of alcohol and substance abuse

    Section 10 would permit employers to test for alcohol and 
substance abuse in accordance with federal guidelines. It also 
would authorize the Secretary to test employees for use of 
alcohol or controlled substances during any investigations of a 
work-related fatality or serious injury. CBO estimates that the 
cost of overseeing the drug and alcohol programs or of any 
additional drug and alcohol tests the Secretary would perform 
as a result of this provision would not be significant.
    Pay-as-you-go consideration: The Balanced Budget and 
Emergency Deficit Control sets up pay-as-you-go procedures for 
legislation affecting direct spending or receipts. Implementing 
worksite-specific compliance methods could affect fines 
collected by OSHA in cases where companies demonstrate that 
they implemented a safety measure at least as stringent as the 
OSHA regulation being violated. Amounts collected from fines 
and penalties are considered revenues and are thus subject to 
pay-as-you-go procedures. However, CBO estimates the amount 
involved would be less than $500,000 a year.
    Estimated impact on state, local, and tribal governments: 
Section 10 of the bill would preempt state laws that are 
consistent with provisions that establish a voluntary alcohol 
and drug abuse testing program. CBO considers such preemptions 
of state law to be mandates under UMRA. This mandate would 
impose no costs on state, local, or tribal governments.
    Section 8 would codify an OSHA regulation under which OSHA 
enters into cooperative agreements with states to provide 
consultation services to employers. Currently, states agreeing 
to participate in this program receive federal reimbursement 
for 90 percent of the cost of consultation services provided as 
well as the full cost of training and out-of-state travel. S. 
385 would retain the current reimbursement for consultation 
services, but decrease the reimbursement for training and 
travel to 90 percent of the costs incurred. Such costs would be 
voluntary and not significant.
    CBO has determined that all other provisions of this bill 
contain no intergovernmental mandates as defined in UMRA.
    Estimated impact on the private sector: Section 10 would 
impose a private-sector mandate, as defined by UMRA, by giving 
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 tests would impose 
negligible or no monetary costs on affected workers.
    Estimate prepared by: Federal costs: Cyndi Dudzinski. 
Impact on State, local, and tribal governments: Susan Sieg. 
Impact on the private sector: Theresa J. Devine.
    Estimate Approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

    X. Views of Senators Kennedy, Dodd, Harkin, Mikulski, Bingaman, 
                      Wellstone, Murray, and Reed

                              introduction

    S. 385, the ``Safety Advancement for Employees (SAFE) Act 
of 1999,'' is unconstitutional legislation that would 
jeopardize the safety and health of American workers. The SAFE 
Act would delegate substantial authority for implementation of 
the Occupational Health and Safety (OSH) Act 1 to 
private sector ``consultants'' selected and hired by employers 
themselves, seriously undermining the ability of the 
Occupational Safety and Health Administration (OSHA) to protect 
American workers from health and safety hazards in the 
workplace. The Department of Justice has ``serious 
reservations'' about the constitutionality of the SAFE Act, 
while Harvard Law Professor Lawrence Tribe states flatly that 
S. 385 cannot pass constitutional muster. For these and other 
reasons, Secretary of Labor Alexis Herman has recommended a 
presidential veto. The SAFE Act is unsafe for American workers 
and for the U.S. Constitution, and it should be rejected.
---------------------------------------------------------------------------
    \1\ 29 U.S.C. Sec. 651(b)(1).
---------------------------------------------------------------------------

 section 3--delegation of osha enforcement authority to private sector 
                              consultants

    The fundamental flaw of the SAFE Act lies in Section 3, its 
core provision. Under the ``Third Party Consultation Services 
Program'' established in Section 3, employers would be allowed 
to hire their own private ``consultants'' to determine their 
compliance with OSHA regulations and the OSH Act.2 
Employers who thereafter receive a ``certificate of 
compliance'' from their private consultants would be exempt 
from OSHA civil penalties for a period of one year.3
---------------------------------------------------------------------------
    \2\ S. 385, Section 3 (adding Section 8A(e)).
    \3\ S. 385, Section 3 (adding Section 8A(f)).
---------------------------------------------------------------------------
Constitutionality
    The SAFE Act is unconstitutional. The Justice Department 
Office of Legal Counsel warns that it has ``serious 
reservations about the constitutionality of the SAFE Act.'' 
4 Lawrence H. Tribe, Tyler Professor of 
Constitutional Law at Harvard Law School, concludes that, 
``strictly as a federal constitutional matter, I believe that 
Section 3--Third Party Consultation--cannot pass muster.'' 
5
---------------------------------------------------------------------------
    \4\ Letter from Jon P. Jennings, Acting Assistant Attorney General, 
Department of Justice, to Senator Edward M. Kennedy, Ranking Member, 
U.S. Senate Committee on Health, Education, Labor, and Pensions (April 
29, 1999), at 5 (hereinafter cited as Justice Letter). A complete copy 
of the Justice letter is appended at the conclusion of the Minority 
Views.
    \5\ Letter from Lawrence H. Tribe, Ralph S. Tyler Jr., Professor of 
Constitutional Law, Harvard University Law School, to Senator Edward M. 
Kennedy, Ranking Member, U.S. Senate Committee on Health, Education, 
Labor, and Pensions (September 14, 1999), at 1 (hereinafter cited as 
Tribe Letter). A complete copy of the Tribe letter is appended at the 
conclusion of the Minority Views.
---------------------------------------------------------------------------
    Section 3 of the SAFE Act suffers from two constitutional 
infirmities. First, it would violate the separation of powers 
by delegating core executive branch functions to private sector 
``consultants,'' thereby undermining the ability of the 
executive branch to execute the laws. Second, this delegation 
of core executive branch functions to private sector 
consultants would be broad enough to require their appointment 
as ``Officers of the United States'' pursuant to the 
Appointments Clause, which would be inconsistent with the 
selection procedures set forth in S. 385.
    Both the Justice Department and Professor Tribe focus much 
of their constitutional analysis on Section 3's violation of 
the separation of powers. The Justice Department states that 
Section 3 ``appear[s] to raise substantial constitutional 
concerns involving the separation of powers.'' 6 
Professor Tribe agrees: ``It is my conclusion that S. 385 would 
violate the separation of powers.'' 7
---------------------------------------------------------------------------
    \6\ Justice Letter, at 1.
    \7\ Tribe Letter, at 3.
---------------------------------------------------------------------------
    The Justice Department explains that ``a statute violates 
the separation of powers if it ``impermissibly undermine[s]'' 
the powers of the Executive Branch * * * or ``disrupts the 
proper balance between the coordinate branches [by] 
prevent[ing] the executive branch from accomplishing its 
constitutionally assigned functions,'' 8 citing the 
Supreme Court case of Morrison v. Olson.9 ``The SAFE 
Act implicates these principles,'' Justice argues, ``because it 
delegates to private entities outside the executive branch 
substantial authority to execute the laws.'' 10
---------------------------------------------------------------------------
    \8\ Justice Letter, at 2.
    \9\ 487 U.S. 654, 695 (1988).
    \10\ Justice Letter, at 2.
---------------------------------------------------------------------------
    The Justice Department argues that the ``substantial 
authority'' which the SAFE Act delegates to private sector 
consultants would include ``central executive functions.''

          Indeed, ``[i]nterpreting a law enacted by Congress to 
        implement the legislative mandate is the very essence 
        of `execution' of the law.'' Bowsher v. Synar, 478 U.S. 
        714, 733 (1986). Private consultants under the bill 
        would be doing precisely what executive agencies 
        typically do, administer a federal regulatory program 
        by determining whether individuals are in compliance 
        with a federal statute and regulations. Moreover, the 
        bill would constrain the executive branch's 
        implementation of the law in a tangible way--by making 
        employers exempt for a period of one year from civil 
        penalties otherwise assessable under the OSH 
        Act.11
---------------------------------------------------------------------------
    \11\ Ibid.

Professor Tribe agrees that ``there is nothing in the statutory 
scheme that prevents these consultants from performing a 
significant and indeed powerful role in implementation and 
execution of a congressional enactment, OSHA.'' ``There is no 
question,'' he adds, ``that the private `consultants' * * * are 
entrusted with important governmental functions.'' 
12 The delegation of such ``central executive 
functions'' would ``prevent the executive branch from 
accomplishing its constitutionally assigned functions,'' 
13 and would therefore violate the separation of 
powers.
---------------------------------------------------------------------------
    \12\ Tribe Letter, at 1.
    \13\ See Morrison v. Olson, 487 U.S. 654, 695 (1988).
---------------------------------------------------------------------------
    Professor Tribe also makes the related argument that 
Section 3 of the SAFE Act would violate the Appointments Clause 
of the Constitution:

          It seems impossible to escape the conclusion that the 
        enforcement and anti-enforcement powers of consultants 
        appointed under Section 3 of S. 385 would be broad 
        enough to require their appointment as ``Officers of 
        the United States'' in accord with the strictures of 
        Article II, Section 2, Clause 2--something for which 
        the proposed law obviously does not provide. * * * 
        Accordingly, under the separation of powers principles 
        articulated in Buckley 14 and adhered to 
        ever since, those consultants would have to be 
        appointed by the President or, pursuant to federal 
        legislation, by the Courts of Law or the Heads of 
        Departments. * * * Although the Secretary [of Labor] is 
        given a role in certifying a given consultant to 
        perform the services required, the selection process is 
        placed entirely in the self-interested hands of the 
        employers regulated by OSHA--the very antithesis of the 
        public-minded process that the Constitution is 
        structured to ensure in the choice of those who would 
        wield significant power over the public under laws 
        enacted by Congress.15
---------------------------------------------------------------------------
    \14\ Buckley v. Valeo, 424 U.S. 1 (1976).
    \15\ Tribe Letter, at 2 (emphasis in original).

Professor Tribe asserts that Section 3 of the SAFE Act ``would 
transgress the Constitution's carefully wrought structure for 
the appointment of those exercising significant public 
authority in implementing the laws of the United States.'' 
16
---------------------------------------------------------------------------
    \16\ Ibid., at 3.
---------------------------------------------------------------------------
    Professor Tribe concludes with this withering judgment:

          For all these reasons, and for the reasons 
        additionally elaborated by the Department of Justice in 
        its analysis of April 28, 1999, it is my conclusion 
        that S. 385 would violate the separation of powers, 
        would impermissibly delegate discretionary federal 
        authority to private individuals, would resemble the 
        line-item veto in entrusting to individuals outside 
        Congress the power effectively to nullify on a 
        temporary basis duly enacted provisions of federal 
        legislation, and would transgress the Constitution's 
        carefully wrought structure for the appointment of 
        those exercising significant public authority in 
        implementing the laws of the United 
        States.17
---------------------------------------------------------------------------
    \17\ Ibid.

    The Majority fails to refute the Justice Department's 
analysis.18 The Majority essentially makes three 
related arguments: (1) penalty exemptions fall within 
Congress's ``unquestionable authority to enhance and reduce 
OSHA penalties''; (2) the Justice Department's constitutional 
analysis is premised on the mistaken belief that the SAFE Act 
would give private consultants authority to impose OSHA 
penalties; and (3) while delegating authority to issue 
penalties might be impermissible, providing for penalty 
exemptions is not. None of these arguments withstands scrutiny.
---------------------------------------------------------------------------
    \18\ The letter from Professor Tribe was received after the 
Majority completed its report.
---------------------------------------------------------------------------
    First, while Congress clearly does have ``unquestionable 
authority to enhance and reduce OSHA penalties,'' this is not 
what the SAFE Act does. S. 385 does not uniformly reduce or 
raise penalties. It delegates to private consultants the 
authority to grant, on a case-by-case basis, exemptions from 
fines otherwise assessable under the OSH Act. As the Justice 
Department letter explains, the authority to issue such penalty 
exemptions is a ``central executive function'' whose delegation 
to private consultants violates the separation of powers.
    Second, the Justice Department's conclusions are by no 
means premised on the assumption that the SAFE Act would give 
private consultants authority to impose OSHA penalties. The 
Majority contends in its Report that

        the underlying reason that the DOJ finds the SAFE Act 
        to be unconstitutional is that the third party 
        consultants envisioned by the bill would be acting in 
        the role of surrogate OSHA compliance officers, 
        inspecting and finding where and how an employer has 
        broken OSHA regulations without having the authority to 
        do so.

``The fundamental role of the SAFE Act,'' the Majority asserts, 
``is not to `implement the legislative mandate' by imposing 
penalties for noncompliance with the OSH Act, as stated by the 
DOJ.'' The Justice Department states no such thing, however.
    On the contrary, the Department quite clearly identifies 
the specific provisions of the SAFE Act that would 
impermissibly delegate ``central executive branch functions,'' 
quoting extensively from S. 385 itself. Justice argues that 
private consultants would be ``implementing the legislative 
mandate'' of the OSH Act by interpreting the law prior to 
issuing a certificate of compliance, and by issuing a penalty 
exemption based on that interpretation.19 Neither of 
these ``central executive branch functions'' involves 
``imposing penalties for noncompliance with the OSH Act,'' and 
Justice is obviously under no illusion that they do. Justice 
cites only one ``tangible way'' in which the SAFE Act would 
constrain ``the executive branch's implementation of the law,'' 
and that is the delegation of authority to grant penalty 
exemptions.20
---------------------------------------------------------------------------
    \19\ Justice Letter, at 2.
    \20\ Ibid.
---------------------------------------------------------------------------
    Third, it certainly follows from the Justice Department's 
analysis that issuing penalties would be a ``central executive 
function.'' But the fact that the SAFE Act does not delegate 
this particular function has no bearing whatsoever on the 
``central executive functions'' that it does delegate. 
Delegation of these ``central executive branch functions,'' by 
itself, violates the separation of powers, regardless of 
whether there may be additional functions whose delegations 
might also violate this constitutional principle.
    The Majority concedes that ``if DOJ's interpretation of the 
third party consultant's role were factual, most of their 
analysis could be supported.'' But the Majority fails to 
identify any respect in which DOJ's interpretation of S. 385 is 
not factual. The constitutional infirmities diagnosed by the 
Justice Department and Professor Tribe are fatal to the SAFE 
Act.

Conflict of interest and accountability

    The delegation of penalty exemption authority to private 
sector consultants is deeply objectionable for policy reasons 
that closely parallel these constitutional arguments--conflict 
of interest and lack of accountability.
    Professor Tribe's Appointments Clause analysis, for 
example, underscores the inherent conflict of interest that 
arises when employers are allowed to select and hire their own 
regulators. Professor Tribe notes that, under Section 3 of the 
SAFE Act,

        the selection process is placed entirely in the self-
        interested hands of the employers regulated by OSHA--
        the very antithesis of the public-minded process that 
        the Constitution is structured to ensure in the choice 
        of those who would wield significant power over the 
        public under laws enacted by Congress.21
---------------------------------------------------------------------------
    \21\ Tribe Letter, at 2-3.

    In testimony before the Employment, Safety and Training 
Subcommittee (``the Subcommittee'') on March 4, 1999, Assistant 
Secretary of Labor Charles N. Jeffress elaborated on the 
problems of conflict of interest raised by Section 3 of the 
---------------------------------------------------------------------------
SAFE Act:

          The third party consultation provision creates a 
        powerful incentive for consultants to please employers 
        in order to create and maintain business. The 
        consultant's business interest in conducting 
        inspections and granting penalty exemptions could place 
        him or her at odds with the interests of employee 
        safety and health. * * * The consultant would feel 
        pressured to sell penalty exemptions without rigorously 
        inspecting workplaces in order to create 
        business.22
---------------------------------------------------------------------------
    \22\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (March 4, 
1999) (hereinafter cited as Jeffress Testimony), at 16.

    The conflict of interest of private consultants under the 
SAFE Act would jeopardize the health and safety of American 
workers. Consultants would likely feel pressure to either 
approve an employer's program or risk termination or non-
renewal of their contract. S. 385 would not prevent employers 
from ``shopping'' for consultants until they find one willing 
to either approve their operations or recommend minimal 
abatement. Moreover, the SAFE Act does nothing to stop 
employers from obtaining penalty exemptions from their own 
employees.23 Public functions such as implementation 
of the OSH Act with respect to employers should not be 
delegated to employees who are subject to discipline, 
discharge, or being passed up for promotion.
---------------------------------------------------------------------------
    \23\ Senator Enzi stated at the Subcommittee's March 4 hearing that 
S. 385 does not envisage employees qualifying as consultants, but S. 
385 contains no such restriction. Hearing on S. 385 Before the Senate 
Subcommittee on Employment, Safety, and Training, 106th Congress, 1st 
Session (March 4, 1999), at 27.
---------------------------------------------------------------------------
    This inherent conflict of interest has nothing to do with 
the relative ethical integrity of OSHA inspectors and private 
sector consultants, contrary to the claims of the Majority. 
OSHA inspectors are prohibited from receiving money from 
regulated employers on the basis of the exact same presumption 
of an inherent conflict of interest. 24 There is an 
obvious and undeniable conflict of interest when any person 
selected and hired by the employer is entrusted to implement 
laws that regulate the employer.
---------------------------------------------------------------------------
    \24\ 18 U.S.C. Sec. 201.
---------------------------------------------------------------------------
    Professor Tribe and the Justice Department also highlight 
the lack of accountability of private consultants under the 
SAFE Act. Professor Tribe notes, ``[T]hese consultants are 
removable by the Secretary only for failure to perform their 
duties or for malfeasance in office, and are not subject to any 
day-to-day supervision of any executive officer.'' 
25 The Justice Department adds: ``Because these 
private consultants would not be directly responsible to the 
President, the public's ultimate check on negligent or 
arbitrary government action would be weakened.'' 26
---------------------------------------------------------------------------
    \25\ Tribe Letter, at 1-2.
    \26\ Justice Letter, at 5.
---------------------------------------------------------------------------
    In his testimony before the Subcommittee, Assistant 
Secretary Jeffress elaborated on the problem of lack of 
accountability. ``The bill provides OSHA with little recourse 
against consultants whose improper certifications put workers 
at risk,'' he told the Subcommittee. While OSHA can discipline 
its own compliance officers, it ``would have no meaningful 
recourse against a consultant who was overly generous in 
granting penalty exemptions due to incompetence or 
negligence.'' 27 Even in cases of ``fraud, 
collusion, malfeasance, or gross negligence,'' OSHA's only 
recourse would be to expel the offending consultant from the 
program.28
---------------------------------------------------------------------------
    \27\ The Majority argues that OSHA would have no need to discipline 
consultants, because the consultants could be sued by wronged 
employers. However, the Majority rejected the Reed Amendment, which 
would have given injured workers and the heirs of deceased workers 
legal recourse for gross negligence or willful misconduct by private 
consultants.
    \28\ Jeffress Testimony, at 16.
---------------------------------------------------------------------------

Obstruction of OSHA's ability to protect workers

    The Justice Department argues that delegation of authority 
to grant penalty exemptions would inherently ``constrain the 
executive branch's implementation of the law in a tangible 
way.'' 29 Indeed, there are several reasons why 
penalty exemptions would, as Assistant Secretary Jeffress 
testified before the Subcommittee, ``undermine the Occupational 
Safety and Health Administration's (OSHA) ability to protect 
workers.'' 30
---------------------------------------------------------------------------
    \29\ Justice Letter, at 2.
    \30\ Jeffress Testimony, at 15.
---------------------------------------------------------------------------
    First, Section 3 penalty exemptions would significantly 
impede OSHA's efforts to abate dangerous workplace hazards. 
Under the OSH Act, OSHA has no sanction other than penalties to 
compel abatement of workplace hazards, and no incentives it can 
offer employers to correct hazards voluntarily.31 In 
fact, OSHA typically obtains abatement through penalty 
reductions. If OSHA had no penalty authority, obtaining 
abatement by recalcitrant employers would be difficult--if not 
impossible--without some other type of available 
sanction.32 Section 3 of the SAFE Act would deprive 
OSHA of its most effective--and in most cases, its only--means 
of protecting workers from imminent workplace hazards.
---------------------------------------------------------------------------
    \31\ OSHA has no statutory authority to obtain abatement orders, 
per se. Abatement may be ordered by the Occupational Safety and Health 
Review Commission (OSHRC), but only after an OSHA citation becomes a 
Final Order of the OSHRC. This can be a lengthy process, however, 
frustrating OSHA's efforts to obtain immediate abatement of serious 
workplace hazards.
    \32\ There is a criminal sanction, but only if the citation is 
willful and the violation has caused the death of an employee. Then 
OSHA can refer the case to the Justice Department for prosecution. 
However, these cases are rarely prosecuted because the crime is 
classified as a misdemeanor. In imminent danger situations, OSHA can 
petition a district court for injunctive relief, but OSHA has had 
difficulties obtaining such relief. See Reich v. Dayton Tire, Div. of 
Bridgestone/Firestone, 853 F. Supp. 376 (W.D. Okla. 1994).
---------------------------------------------------------------------------
    Second, civil fines are one of OSHA's most effective tools 
for reducing deaths and injuries in the most dangerous 
workplaces. The only large-scale study performed to date found 
that OSHA inspections resulting in penalties led to a 22 
percent reduction in injuries at inspected sites during the 
three years following inspection.33 The study also 
found that inspections without penalties have no appreciable 
impact on subsequent rates of injuries. By immunizing employers 
against penalties, the SAFE Act would eliminate one of OSHA's 
most effective means of protecting workers' health and safety.
---------------------------------------------------------------------------
    \33\ Wayne Gray and John Scholz, ``Does Regulatory Enforcement 
Work? A Panel Analysis of OSHA Enforcement,'' Law and Society Review 
(July 1993), at 177-213.
---------------------------------------------------------------------------

An invitation to abuse

    Concerns over conflicts of interest and accountability are 
especially serious given that Section 3 penalty exemptions 
would virtually invite abuse by bad actors. Most alarmingly, 
Section 3 would exempt employers from OSHA fines even if they 
are in willful violation of OSHA regulations and even if their 
willful violation results in serious injury to an employee.
    During Committee consideration of S. 385, Senator Kennedy 
offered an amendment to close this gaping loophole. The Kennedy 
amendment would have disallowed penalty exemptions ``if the 
employer knew or should have known of the violation.'' The 
Majority rejected the Kennedy amendment on a party-line vote of 
8 to 10. This vote makes clear that the SAFE Act would immunize 
bad actors who knew or should have known of their violation.
    A second Kennedy amendment would have disallowed penalty 
exemptions for employers who commit violations that are 
``willful, repeat, or have a substantial probability of causing 
death or serious physical harm.'' This amendment was modeled 
after the recommendations of Majority witness Ron Hayes, who 
testified at the Subcommittee hearing of April 13, 1999. While 
Mr. Hayes endorsed S. 385, he also testified that the SAFE 
Act's one-year penalty exemption should not apply against 
violations that are ``willful,'' ``repeat,'' or even 
``serious'' (having a substantial probability of causing death 
or serious physical harm).34 The Majority rejected 
the second Kennedy amendment--and the recommendations of its 
own witness--on a party-line vote of 8 to 10.
---------------------------------------------------------------------------
    \34\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (April 
13, 1999), at 38.
---------------------------------------------------------------------------
    The Majority denies the possibility of such abuse by 
arguing that ``at all times and under all circumstances, OSHA 
remains free to inspect those worksites, and if that employer 
is not acting in `good faith' as determined by OSHA, that 
employer is removed from the program.'' The protections to 
which the Majority alludes are illusory, however.35
---------------------------------------------------------------------------
    \35\ As discussed supra, authority to inspect the worksite has 
little practical effect if OSHA is unable to obtain abatement.
---------------------------------------------------------------------------
    Section 3 does contain a ``bad faith'' exception. An 
employer shall not be exempt from OSHA fines ``if the employer 
has not made a good faith effort to remain in compliance as 
required under the certificate of compliance.'' 36 
However, under this provision, the employer need only make a 
good faith effort to comply with his or her certificate, not 
with OSHA regulations or the OSH Act. The certificate may well 
be inaccurate. The employer may be aware of its inaccuracy. But 
no matter. As the Majority's rejection of the Kennedy 
amendments makes clear, the employer would nevertheless be 
immune from OSHA fines--even if it knew or should have known of 
the violation, and even if the violation were willful and 
repeat.37
---------------------------------------------------------------------------
    \36\ S. 385, Section 3 (adding Section 8A(f)(2)(a)).
    \37\ Notwithstanding the Majority's assertion that ``good faith'' 
would be ``determined by OSHA,'' Section 3 is silent on the procedures 
for determining when an employer ``has made a good faith effort to 
remain in compliance'' with the certificate, as well as who makes such 
a determination.
---------------------------------------------------------------------------
    Nor is this an improbable scenario. Employers aware of 
potentially costly safety hazards would have every incentive 
under the SAFE Act to purchase a one-year immunity from the 
first consultant who failed to notice the hazard, or from the 
consultant who recommended the least costly abatement. And it 
would not be unusual for employers at large worksites to be 
much more intimately familiar with potential safety hazards 
than consultants who visit their worksite solely for the 
purpose of conducting a ``full service visit and 
consultation.'' 38 The SAFE Act would allow such bad 
actors to obtain immunity from OSHA penalties while making a 
``good faith'' effort to remain in compliance with their 
certificates.
---------------------------------------------------------------------------
    \38\ S. 385, Section 3 (adding Section 8A(e)(1)).
---------------------------------------------------------------------------
    Indeed, Section 3 penalty exemptions would be of greatest 
economic value to firms with the greatest exposure to OSHA 
penalties. Large corporations already in compliance with OSHA 
regulations and the OSH Act need little additional incentive to 
develop safety and health programs; they typically have such 
programs in place already. And the SAFE Act would provide 
little additional economic incentive for smaller firms already 
in compliance, or for firms with limited penalty exposure, to 
undergo the considerable expense of hiring a consultant. This 
is especially true of small businesses with fewer than 250 
employees, who can already obtain free consultation services 
from OSHA in all 50 states. The SAFE Act would offer the 
greatest economic benefit to firms whose penalty exposure 
exceeds the marginal cost of consultation.
    While S. 385 is ostensibly designed to meet the needs of 
small business, in practice it would allow very large Fortune 
500 corporations effectively to immunize themselves from OSHA 
enforcement. Section 3 contains no limitation on the size of 
firms that are eligible for penalty exemptions. Section 3 
penalty exemptions would thus be available to large 
corporations that typically have safety and health programs 
already in place. And there is nothing in this legislation that 
would prevent qualifying firms from hiring their own employees 
as Section 3 consultants. Under the SAFE Act, in-house safety 
and health staff could certify their own existing programs. The 
SAFE Act would therefore have the perverse effect of letting 
employees of Fortune 500 corporations grant penalty exemptions 
to their own employers.

OSHA's support for consultation

    It should be emphasized that the Minority does not object 
in any way to the use of private sector consultants. On the 
contrary, OSHA and the Minority strongly encourage the use of 
third-party consultants, as well as in-house safety and health 
staff. The Minority's fundamental disagreement with the SAFE 
Act is not over the use of private sector consultants, but over 
the delegation to these consultants of penalty exemption 
authority.
    In testimony before the Subcommittee, Assistant Secretary 
Jeffress declared his support for the use of third-party 
consultants. ``Private safety and health consultants provide an 
important service and OSHA encourages employers to use them as 
a valuable resource,'' he told the Subcommittee.39 
In fact, OSHA already encourages the use of such consultants, 
whether third-party or in-house, by granting employers penalty 
reductions in recognition of their ``good faith efforts.''
---------------------------------------------------------------------------
    \39\ Jeffress Testimony, at 15.
---------------------------------------------------------------------------
    Margaret Seminario, Occupational Safety and Health Director 
of the AFL-CIO, described OSHA's procedures for ``good faith'' 
penalty reductions in her testimony before the Subcommittee on 
March 4, 1999:

          Good faith efforts would include establishing a 
        safety and health program, whether it is done in-house 
        or whether it is done by a third-party. If an employer 
        did what is in Mr. Enzi's bill, setting up a safety and 
        health program, whether they did it on their own or had 
        a third party come in, they would now get a 25 percent 
        reduction from OSHA penalties. It is right there in 
        their field operations manual. In addition, if you are 
        a small employer, there is an automatic penalty 
        reduction, and I think that for an employer of from one 
        to 25 [employees], it is a 60 percent 
        reduction.40
---------------------------------------------------------------------------
    \40\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (March 4, 
1999), at 90.

In fact, small businesses who hire third-party consultants to 
establish a safety and health program would be eligible for 
penalty reductions of up to 95 percent. These and other 
incentives may be appropriate and desirable, unlike delegation 
of penalty exemption authority to private consultants.
    In addition, OSHA and the Minority also strongly support 
the development and use of free consultation programs. 
Assistant Secretary Jeffress testified that OSHA ``provides 
free consultation for small businesses in each of the fifty 
states, the District of Columbia, and three territories.'' 
41 These free consultation services are available to 
small business with fewer than 250 employees, or about 99 
percent of employers. At the Subcommittee's hearing on March 4, 
1999, Roslyn Wade, director of the Minnesota state OSHA 
program, testified that the waiting period for the free 
consultation program in Minnesota is less than two 
weeks.42
---------------------------------------------------------------------------
    \41\ Jeffress Testimony, at 15.
    \42\ See Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (March 4, 
1999), at 54.
---------------------------------------------------------------------------

OSHA's increased emphasis on cooperative programs

    Since 1993 OSHA has significantly altered its approach to 
place a much greater emphasis on consultation, outreach and 
assistance. Notwithstanding the Majority's claims that OSHA 
pursues an ``adversarial'' rather than a ``collaborative'' 
approach, OSHA has in fact strengthened its cooperative 
programs, partnering with conscientious employers, offering 
free consultation, and reaching out to small businesses.
    OSHA's Safety and Health Achievement Recognition Program 
(SHARP) is one example of OSHA's cooperative partnerships with 
businesses. Under the SHARP program, employers and private 
consultants work together to fix hazards in the workplace in 
exchange for exemptions from programmed OSHA inspections. Even 
the Majority acknowledges that the SHARP program achieves 
``outstanding results.''
    It is important to note the significant differences between 
the SHARP program and the SAFE Act, however. Under the SHARP 
program, OSHA still retains oversight authority to ensure that 
workers are protected. SHARP provides exemptions only from 
programmed inspections, but OSHA can still inspect the worksite 
in the case of a serious accident or an employee complaint. The 
SHARP program does not provide blanket immunity from civil 
penalties, and OSHA retains authority to revoke participation 
in the program at any time.
    Similarly, OSHA's Voluntary Protection Program (VPP) 
rewards employers who partner with OSHA to improve safety and 
health conditions at their worksites. Once OSHA has certified a 
VPP participant, that worksite is not subject to routine OSHA 
inspections. According to OSHA statistics, lost workday 
injuries at VPP star sites have been about 50 percent below the 
industry average. In 1995, the National Performance Review 
recognized the VPP as an example of excellence in reinventing 
government, and Vice President Gore presented OSHA with the 
Hammer Award.
    As these innovative programs demonstrate, OSHA treats good 
and bad employers very differently, contrary to the Majority's 
charge that ``OSHA lumps all employers together--both the good 
and the bad--[and] treats them the same.'' OSHA is now 
targeting enforcement efforts towards the most dangerous 
workplaces. Each year OSHA targets 12,500 of the most dangerous 
non-construction worksites in the country and inspects as many 
of them as possible. OSHA now conducts approximately 3,000 
targeted inspections each year in the manufacturing industry 
alone. With this strategy, OSHA can spend more time where it is 
most needed--at workplaces where employers are putting their 
workers' safety and health in jeopardy. As a result, safer 
workplaces face fewer inspections.

The importance of enforcement

    In short, OSHA employs a balanced approach that includes 
not only compliance assistance, education, training, and free 
consultation services for small businesses, but also targeted 
enforcement initiatives. Enforcement and cooperative programs 
are complementary functions, and neither can succeed without 
the other. By emasculating OSHA's enforcement authority, the 
SAFE Act would paradoxically undermine the very cooperative 
programs the Majority supports.
    As enforcement encourages employers to bring their 
worksites into compliance with OSHA regulations and the OSH 
Act, it simultaneously creates incentives for employers to hire 
consultants or to participate in free consultation programs. 
The Majority ignores the advice of experts who warn that many 
employers will lose interest in collaborative initiatives if 
OSHA fails to maintain a credible enforcement program. And as 
Margaret Seminario testified before the Subcommittee on March 
4, 1999, ``If you take the penalties off the table, you are 
essentially creating a system which does not really have any 
teeth to it.'' 43
---------------------------------------------------------------------------
    \43\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (March 4, 
1999), at 89.
---------------------------------------------------------------------------
    Enforcement is not only necessary; but has proven to be 
very effective in improving workplace health and safety. The 
most significant reductions in injury and illness rates have 
occurred in sectors of the economy that have been subject to 
the most intensive enforcement. In manufacturing and 
construction, industries that have received the vast majority 
of OSHA inspections, injury and illness rates have declined by 
30.7 percent and 50 percent, respectively, since 1973. The 
mining industry, whose inspection frequency under the Mine 
Safety and Health Act is much more intensive, has experienced 
the greatest decline in injury and illness rates--57 percent 
since 1973.
    The results have been much less impressive in industries 
that have received little or no attention, where safety and 
health have been left largely to the voluntary compliance 
efforts of employers. Those sectors have made little or no 
progress in reducing job injuries and illnesses. For example, 
in both the finance sector and the 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 in construction, once one of the most hazardous 
industries. The finance and service industries, which have 
experienced a large growth in employment, are now responsible 
for a major part of the overall occupational injury and disease 
burden in this country.
    The Majority argues that continued reliance on OSHA for 
enforcement of the OSH Act is not a viable option, since OSHA 
is only ``able to inspect every worksite once every 167 
years.'' This frequently-cited statistic needs to be put in 
context, however. OSHA is prohibited from conducting scheduled 
safety inspections of over three million businesses--firms with 
10 or fewer employees or in lines of business with injury rates 
below the national average. OSHA is able to target some of the 
more dangerous industries for inspections with far greater 
frequency than the quoted figure would suggest.
    Nevertheless, the inability of OSHA inspectors to reach 
more worksites in this country is a serious concern. A helpful 
first step towards a solution to this problem would be to stop 
cutting OSHA's enforcement budget. Despite rapid growth in the 
labor force since 1980, the number of OSHA federal compliance 
officers has fallen from 1,388 to 1,064. Meanwhile, the House 
Labor/HHS Appropriations bill for FY 2000 cuts the OSHA 
enforcement budget by 12 percent, and Subcommittee Chairman 
Enzi offered an amendment to the FY 2000 Senate Labor/HHS 
Appropriations bill that was intended to cut OSHA's proposed 
enforcement budget by $16.8 million.
    Another obvious solution would be to leverage OSHA's 
resources with enhanced legal protections for safety and health 
whistleblowers. However, despite the support of all three 
Majority witnesses at the April 13, 1999 Subcommittee 
hearing,44 the Majority rejected Senator Wellstone's 
amendment to enhance OSHA whistleblower protections.
---------------------------------------------------------------------------
    \44\ The three witnesses invited by the Majority--Ron Hayes, 
Charles LeCroy, and William Alcarese--all supported enhanced 
protections for OSHA whistleblowers and to enhance criminal penalties. 
See Hearing on S. 385 Before the Senate Subcommittee on Employment, 
Safety, and Training, 106th Congress, 1st Session (April 13, 1999), at 
36-37. By contrast, no Minority witnesses endorsed the SAFE Act.
---------------------------------------------------------------------------
    The Majority Report contends that OSHA enforcement is 
inadequate and does not ``effectively deter bad employers from 
breaking the law.'' To illustrate the point, Majority witnesses 
at the April 13 hearing expressed concern over excessive 
reductions of OSHA civil penalties resulting from alleged 
collusion between OSHA compliance officers and employers. Yet 
the Majority rejected the Wellstone amendment to enhance 
criminal penalties, which would have addressed these concerns. 
The Wellstone amendment, which was also endorsed by all three 
Majority witnesses at the April 13 hearing,45 would 
have classified willful violations that result in the death of 
an employee as felonies rather than misdemeanors. Such enhanced 
criminal penalties would indeed ``effectively deter bad 
employers from breaking the law'' and reduce the frequency of 
inappropriately low civil penalties.
---------------------------------------------------------------------------
    \45\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (April 
13, 1999), at 36-37.
---------------------------------------------------------------------------

The success of the OSH Act

    While the Minority agrees that OSHA enforcement, training, 
and consultation programs need to be strengthened and improved, 
it is simply inaccurate to claim that OSHA's record has been 
``disastrous.'' Injury and illness rates have been dropping 
steadily almost since the agency's inception. Since 1973, 
workplace injuries are down 36 percent. The injury and illness 
rate for 1997 was the lowest since the Bureau of Labor 
Statistics (BLS) began reporting this information early in the 
1970s. In addition, the rate of workplace fatalities has 
declined. In just four years, from 1994 to 1998, workplace 
fatalities have decreased by 15 percent.
    According to the BLS 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 represents 
an overall decline of 32.7 percent. The number of fatal work 
injuries fell in 1996 to 6,112, the lowest level in the five-
year history of this BLS survey. From 1948 through 1970, the 
occupational death rate declined by 37.9 percent. Between 
enactment of the OSH Act in 1970 and 1992, the occupational 
death rate declined by over 60 percent.

Real OSHA Reform

    Despite this remarkable progress in reducing workplace 
injuries and fatalities, the Minority agrees that too many 
American workers continue to be injured, get sick, or die on 
the job. The Minority also agrees that OSHA needs to reach a 
greater percentage of American workplaces, but notes that this 
will require adequate resources. OSHA's resources could be 
effectively leveraged by enhancing protection for 
whistleblowers, as all three Majority witnesses testified at 
the April 13 Subcommittee hearing. In addition, as these 
Majority witnesses also testified, criminal penalties should be 
enhanced to ``effectively deter bad employers from breaking the 
law.'' The Minority agrees that education and training for OSHA 
inspectors could be improved, but again, this will require 
adequate resources. And OSH Act coverage should also be 
extended to federal, state, and local workers, as several 
members of the Majority have advocated in the past.
    While there is much that could be done to strengthen 
protections for workplace safety and health, the Majority's 
brief against OSHA is riddled with logical contradictions. It 
makes little sense to criticize OSHA for failing to inspect 
more workplaces, while at the same time cutting OSHA's 
enforcement budget and opposing stronger protections for OSHA 
whistleblowers. It makes little sense to criticize OSHA for 
failing to ``effectively deter bad employers from breaking the 
law,'' while at the same time opposing stronger criminal 
penalties. It makes little sense to criticize OSHA for issuing 
inappropriately low civil penalties, while at the same time 
depriving OSHA of its authority to issue any penalties at all. 
It makes little sense to criticize OSHA for alleged collusion 
with employers, while at the same time delegating substantial 
OSHA enforcement authority to unaccountable private sector 
consultants selected and hired by employers themselves.
    The Majority's arguments in support of the Section 3's 
private consultation program are unpersuasive. Section 3 is an 
unconstitutional provision that would invite abuse by bad 
actors and obstruct OSHA's ability to protect workers from 
dangerous hazards in the workplace. For these and other reasons 
discussed above, the Minority strongly opposes Section 3.

                      Expanded Inspection Methods

    Section 6 of the SAFE Act would allow OSHA to investigate 
alleged violations by telephone or fax. This provision would 
also allow OSHA to decline investigation of a complaint if OSHA 
suspects that the request was made ``for reasons other than the 
safety and health of the employees'' or if OSHA determines that 
workers are not at risk.
    The Minority finds this section objectionable for two 
reasons. First, it creates a one-size-fits-all approach, 
failing to acknowledge that OSHA conducts many types of 
inspections. All employees have a fundamental right to initiate 
an OSHA inspection with a formal complaint. Where a worker 
formally seeks to exercise that statutory right, investigating 
by telephone or fax will not suffice. For inspections following 
an informal complaint, on the other hand, OSHA may currently 
investigate by telephone or fax. OSHA has already reduced the 
delay between the filing of complaints and the abatement of 
hazards.
    Second, Section 6 would allow OSHA to forgo conducting a 
complaint inspection if it determines that the complaint was 
made for reasons other than safety and health--even if workers 
are at risk. Where workers face substantial hazards, OSHA is 
compelled by statute to act, regardless of the motivation of 
the complainant. Moreover, determining the motivations for a 
complaint is work better suited to psychologists than to OSHA 
compliance officers. Attempting to discern what is in the minds 
of each complainant would consume scarce agency resources and 
delay inspections. The Minority believes OSHA should continue 
to inspect where workers are at risk.

                           Employer Defenses

    Section 7 of the bill would create an entirely new 
statutory defense to OSHA citations. Under Section 7, an 
employer would be allowed to argue that employees are protected 
by alternate methods as protective as, or more protective than, 
the OSHA standard violated by the employer. 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 
(OSHRC) and the courts have held repeatedly that, when OSHA 
standards require employers to adopt specific precautions for 
protecting their workers, 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 7, 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.
    Section 7 would sweep aside the years of public comment, 
risk assessment and feasibility evidence that go into the 
compliance obligations expressed in OSHA standards. It would 
make OSHA rulemaking--and public participation by businesses, 
trade associations, employee groups and other stakeholders--
largely irrelevant. Moreover, if the Majority believes that 
current OSHA standards fail to give clear guidance to the 
regulated community, this new defense allowing employers to 
decide their own precautions would make the tort law system 
look like a model of simplicity and predictability. Section 7 
could have a substantial impact on agency resources, and would 
greatly increase litigation burdens on OSHA, the OSHRC, and the 
federal courts.

                      Technical Assistance Program

    Section 8 of the SAFE Act 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. However, the fifty state agencies that already 
administer the consultation program have expressed serious 
reservations about charging fees for the consultation program.
    The practical effect of imposing a fee for consultation 
services is obvious: those who could pay would be visited 
first. This contradicts the Majority's stated desire to direct 
these consultation services to small employers and very 
dangerous worksites that cannot afford to hire other 
consultants.

                      Voluntary Protection Program

    Section 9 of the SAFE Act attempts to codify OSHA's 
Voluntary Protection Program by requiring OSHA to establish 
cooperative agreements with employers who create and maintain 
comprehensive safety and health management systems. Section 9 
requires enhanced OSHA efforts to include small businesses in 
the program. Participation would result in exemptions from 
inspections and from certain paperwork requirements.
    However, the VPP has traditionally been a program for 
worksites, not employers, and it should remain so. Although 
Section 9 makes some references to ``the worksite,'' this 
critical foundation of the program must be emphasized. 
Accordingly, the Minority does not support this provision as 
drafted.

               Prevention of Alcohol and Substance Abuse

    Section 10 of the SAFE Act authorizes OSHA to test workers 
and managers for drugs and alcohol following 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 the oversight of drug and 
alcohol programs--an area in which the agency has no expertise. 
Furthermore, 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 11 of the SAFE Act provides that OSHA should be 
allowed to issue warnings, rather than citations, to employers 
when their violations poses no significant safety hazard, or 
when they have acted in good faith to abate their violations 
promptly.
    The OSH Act currently provides that OSHA ``shall'' issue 
citations, and Section 11 would change this language 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 Section 11 may be 
simply unnecessary.
    But Section 11 could also undermine OSHA's enforcement 
authority. Some employers could misunderstand Section 11 as a 
limitation on OSHA's authority to issue citations. Especially 
troubling is the language permitting a warning in lieu of 
citation for violations that the employer ``acts promptly to 
abate.'' Although OSHA would still have discretion to issue 
citations in such circumstances, this language might encourage 
employers to let violations go uncorrected until they are 
discovered by OSHA inspectors. This provision could thus 
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 reduction of 
penalties rather than failure to issue citations. Otherwise, 
employers who make good faith efforts before an OSHA inspector 
arrives on the doorstep will be treated in the same way as 
negligent employers who ignore their workers' safety until they 
are inspected.

                         Democratic Amendments

Strike penalty exemption

    To resolve the serious constitutional, conflict of interest 
and accountability problems in the SAFE Act, Senator Kennedy 
offered an amendment to remove the penalty exemption provisions 
of Section 3. Delegating penalty exemption authority to private 
consultants is unconstitutional and dangerous to American 
workers. The Department of Justice and Harvard Law Professor 
Lawrence Tribe have argued that this provision violates the 
separation of powers and the Appointments Clause--Article II, 
Section 2, Clause 2. For this reason alone, the penalty 
exemption provision should be stricken.
    Striking this provision from the SAFE Act would have also 
addressed the bill's obvious conflict of interest and 
accountability problems. Allowing employers to select and hire 
private individuals to exempt them from OSHA penalties presents 
undeniable conflict of interest problems. OSHA inspectors are 
prohibited from receiving money from employers--and for good 
reason. A financial relationship, however well-intended, 
undermines the ability of inspectors to uphold the public 
interest. For this reason, private paid consultants should not 
be given the authority to shield employers from OSHA penalties.
    In addition, as drafted, S. 385 lacks any meaningful 
mechanism to deal with consultants who, through incompetence or 
negligence, grant penalty exemptions that leave workers exposed 
to workplace hazards. And for employers who engage in more 
culpable conduct, such as collusion or fraud, the SAFE Act only 
provides for their expulsion from the program. This remedy, 
where it exists, is simply insufficient to redress the 
potential harm to which workers would be subjected. The SAFE 
Act contains no mechanism for revoking certificates of 
compliance that are inaccurate, not even when workers are 
seriously injured or killed. OSHA must be allowed to retain its 
authority to enforce workplace health and safety standards when 
workers are at risk.
    The Kennedy amendment was a constructive step towards 
resolving the Minority's concerns with S. 385. Unfortunately, 
the Majority defeated the amendment on party-line vote of 8 to 
10.

Strike penalty exemption for willful, repeat and serious violations

    The penalty exemption authority delegated to private 
consultants under the SAFE Act is broad and overreaching. Once 
a consultant issues the certificate of compliance, OSHA has no 
remedies against employers who deliberately jeopardize the 
safety and health of their workers. The Majority's own 
witnesses, Mr. Ron Hayes, agreed that the SAFE Act's penalty 
exemptions should not apply against employers whose violations 
are willful, repeat, or serious.46 Senator Kennedy's 
second amendment, based on the recommendations of Mr. Hayes, 
would have disallowed exemptions for employers who commit 
violations that are ``willful, repeat, or have a substantial 
probability of causing death or serious physical harm.'' The 
Majority rejected this amendment, and the recommendations of 
its own witness, on a party-line vote of 8 to 10.
---------------------------------------------------------------------------
    \46\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (April 
13, 1999), at 38.
---------------------------------------------------------------------------

Strike penalty exemptions for employers who knew of violations

    Senator Kennedy's third amendment was designed to prevent 
penalty exemptions from shielding bad actors. Under the 
amendment, employers would forfeit their penalty exemption if 
they knew or should have known of their violation. Employers 
who know they are violating the law should not be immunized 
from OSHA enforcement just because a private consultant failed 
to notice a workplace hazard or agrees to let them fix it over 
a prolonged period of time. Again, this amendment underscores 
the Minority's view that penalty exemptions should not give 
employers an excuse to ignore the safety and health of their 
workers. The Majority's rejection of this amendment on a vote 
of 8 to 10 makes it clear that S. 385 Act would immunize bad 
actors.

Enhanced whistleblower protections

    While the SAFE Act purports to protect workers, the 
Majority rejected an amendment offered by Senator Wellstone 
that would have given workers real safety and health 
protections. Senator Wellstone's amendment would have 
strengthened and expanded anti-discrimination protections for 
employees who report workplace health and safety hazards in the 
workplace. The Wellstone amendment would encourage employees to 
step forward and identify hazards in the workplace without fear 
of retaliation from their employers.
    In theory, workers are already protected from retaliation 
under Section 11(c) of the OSH Act, but this protection is all 
too often meaningless. As Assistant Secretary of Labor Charles 
Jeffress testified before the Employment, Safety, and Training 
Subcommittee, ``The provisions in place today in Section 11(c) 
of the Act are too weak and too cumbersome to discourage 
employer retaliation or to provide an effective remedy for the 
victims of retaliation.''47
---------------------------------------------------------------------------
    \47\ Jeffress Testimony, at 18.
---------------------------------------------------------------------------
    The Wellstone amendment would have corrected the flaws in 
Section 11(c). It would have given workers 6 months, rather 
than 30 days, to file a grievance for retaliation. It would 
have protected not only workers who report unsafe conditions, 
but also employees who refuse to work when they have good 
reason to think they might be harmed or injured. To expedite 
the grievance process, the Wellstone amendment provided for 
prompt hearings before an administrative law judge. It would 
have allowed dissatisfied workers to then take their case to a 
federal appeals court themselves, not having to rely on the 
Department. And it would have provided for reinstatement during 
these proceedings, as well as compensatory damages and 
exemplary damages when the employer's behavior is particularly 
outrageous.
    At a time when too many workers are injured or killed on 
the job, the courageous individuals who report workplace safety 
and health hazards need more protection, not less. All four 
witnesses at the April 13, 1999 hearing of the Employment, 
Safety, and Training Subcommittee--including the three Majority 
witnesses--endorsed the Wellstone amendment.48 
Ignoring the recommendations of its own witnesses, the Majority 
rejected this amendment on a vote of 8 to 10.
---------------------------------------------------------------------------
    \48\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (April 
13, 1999), at 36-37.
---------------------------------------------------------------------------

Criminal penalties

    The Majority argues that OSHA's enforcement of the OSH Act 
has been excessively burdensome, and that employers need relief 
from excessive and costly compliance requirements. Yet the 
Majority also argues, and Majority witnesses have testified, 
that OSHA does not ``effectively deter bad actors from breaking 
the law.'' Senator Wellstone offered an amendment that would 
have deterred bad actors without imposing any new 
administrative burdens.
    By statute, an employer who willfully violates the OSH Act 
and causes the death of an employee can only be charged with a 
misdemeanor. Because this criminal penalty is so insignificant, 
the Justice Department rarely prosecutes employers whose 
deliberate actions cause the death of their employees.
    Senator Wellstone's amendment would have reclassified 
willful violations that result in the death of an employee as 
felonies, rather than misdemeanors. For willful violations 
resulting in death, the Wellstone amendment would have 
increased the maximum fine from $10,000 to $250,000, and the 
maximum jail time from six months to 10 years. All four 
witnesses at the April 13, 1999 hearing of the Employment, 
Safety, and Training Subcommittee--including three Majority 
witnesses--endorsed this amendment.49 However, the 
Wellstone amendment failed on a split vote of 9 to 9.
---------------------------------------------------------------------------
    \49\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (April 
13, 1999), at 36-37.
---------------------------------------------------------------------------

State and local public employee protections

    Senator Wellstone offered an amendment extending OSH Act 
coverage to state and local public employees who are not 
currently covered. Today, 29 years after the OSH Act was 
enacted, over eight million state and local workers continue to 
be excluded. Public workers often perform dangerous work and 
suffer injury rates higher than most other workers. In 1997, 
624 state and local workers were killed at work.
    The extension of OSH Act protections to state and local 
government employees has had bipartisan support in the past, 
including the support of the Bush Administration in 1991. The 
Clinton Administration supports extension of OSH Act coverage 
to public employees, as well. At the March 4 hearing of the 
Subcommittee, Assistant Secretary Charles Jeffress testified,

          Another area this Subcommittee may want to consider 
        is protections for public employees. The OSH Act 
        currently * * * does not protect state and local 
        employees (maintenance workers, construction workers, 
        firefighters, etc.) * * * There are numerous examples 
        of on-the-job tragedies that occurred primarily because 
        safety and health protections do not apply to public 
        employees. These tragedies could have been prevented by 
        compliance with OSHA rules.50
---------------------------------------------------------------------------
    \50\ Jeffress Testimony, at 18.

    Despite significant bipartisan support in the past for this 
common-sense reform, the Wellstone amendment failed on a 9 to 9 
vote.

Federal employee protection

    Similarly, Senator Wellstone offered an amendment to extend 
full OSHA coverage to employees of the federal government. 
Federal employees have been excluded from OSHA coverage for 
almost 30 years. While a 1980 executive order requires federal 
agencies to comply with OSHA standards, it provides no real 
enforcement authority to ensure that federal workers are in 
fact being protected.
    Again, this common sense amendment should have been 
bipartisan and uncontroversial. In 1994, Republican congressman 
Cass Ballenger proposed to cover federal employees in his OSHA 
reform legislation. Last year, under the leadership of Senator 
Enzi, the Senate voted unanimously to extend OSHA coverage to 
the U.S. Postal Service. On introducing his Postal Employees 
Safety Enhancement Act of 1998, Senator Enzi indicated that all 
federal employees should ultimately be covered, stating, ``This 
important legislation is an incremental step in the effort to 
ensure that the `law of the land' applies equally to all 
branches of government as well as the private sector--and 
everything in between.'' 51 Nevertheless, the 
Wellstone amendment failed on a party-line vote of 8 to 10.
---------------------------------------------------------------------------
    \51\ Congressional Record (May 22, 1998), at S5434.
---------------------------------------------------------------------------

OSHA investigations for fatalities on small farms

    A rider attached to previous and current Labor, Health and 
Human Services, and Education appropriations bills prevents 
OSHA from obligating or expending funds to prescribe, issue, 
administer, or enforce any standard, rule, regulation, or order 
under the OSH Act in the case of a farming operation that does 
not have a temporary labor camp and that has 10 or fewer 
employees.
    To address the critical issue of child labor safety in the 
agriculture industry, Senator Reed proposed an amendment that 
would have granted OSHA funding to conduct inspections and 
issue reports on the causes of accidents that claim the lives 
of employees under the age of 18 who die while working on small 
farms. The Reed amendment would have retained the rest of the 
small farm rider, preventing OSHA from levying fines, issuing 
citations, or taking any other enforcement action on small 
farms.
    The Minority recognizes the importance that many Senators 
place on protecting smaller farms and businesses from undue 
regulation. The Minority is also aware that the small farm 
rider has been part of the law since 1977. However, agriculture 
remains the second most hazardous industry in the nation, with 
592 work-related deaths on farms in 1998. The risk of fatal 
injury is particularly great for children. Indeed, the 
magnitude of this problem was recognized by the National 
Research Council (NRC) in a 1998 report entitled Protecting 
Youth at Work.52
---------------------------------------------------------------------------
    \52\ National Research Council, Protecting Youth at Work (1988).
---------------------------------------------------------------------------
    The level of OSHA enforcement applied to non-agricultural 
small businesses is more rigorous than the OSHA activity 
allowed on small farms. Under a separate rider, non-
agricultural small businesses with 10 or fewer employees are 
already subject to OSHA enforcement (including citations and 
fines) for hazards that present an imminent danger to employee 
safety and health. More significantly, these firms are subject 
to inspections and fines as a consequence of an employee death, 
incidents that seriously multiple employees, and complaints 
made by an employee.
    Rather than placing small farms on a par with small 
businesses of comparable size, Senator Reed's amendment would 
have retained the ban on OSHA enforcement, but would have 
allowed important information on the causes of fatal accidents 
to be gathered and shared with the operators of small farms. 
This narrowly tailored amendment struck an appropriate balance 
by allowing OSHA to determine the cause of a worker's death, 
but not to impose penalties on the farm operator. However, the 
Reed amendment failed on a split vote of 9 to 9.

Private right of action and criminal penalties

    Senator Reed also offered an amendment to make consultants 
more accountable under the SAFE Act. The Reed Amendment would 
have created a private right of action for employees injured by 
the culpable conduct of consultants, and also would have 
established criminal penalties.
    The SAFE Act provides OSHA only very limited authority to 
oversee the private consultants who are delegated penalty 
exemption authority. OSHA would have little recourse against 
consultants who engage in misconduct or simply fail to keep the 
workplace safe. Because of this lack of accountability, Senator 
Reed offered an amendment to make consultants accountable to 
any employees injured due to the consultant's gross negligence 
or willful misconduct. Specifically, the Reed amendment would 
have added a new private right of action against consultants 
and employers for employees (or their heirs) injured or killed 
due to willful or grossly negligent misconduct.
    In addition to this private right of action, the Reed 
amendment would have made bad consultants subject to criminal 
penalties. The amendment would have made it a misdemeanor for 
an employer and consultant to conspire to hide a hazard. Under 
the Reed Amendment, a misdemeanor charge would also attach if 
the consultant failed to identify a hazard through gross 
negligence.
    The Reed amendment would have provided at least some 
assurance that parties responsible for the death or injury of 
an employee could be held accountable under the SAFE Act. 
However, it failed on a party line vote of 8 to 10.

Alternative complaint procedures

    Senator Murray offered an amendment to restore the right of 
employees to secure an inspection of their workplace when they 
file a formal, written, and signed complaint that makes out a 
prima facie case of a health or safety violation threatening 
physical harm or imminent danger. S. 385 eliminates this most 
fundamental right of employees to obtain the assistance of 
their government in protecting their health and their lives--a 
right that is all the more essential because the OSH Act 
provides no private right of action to compel employers to 
comply with the law.
    Senator Murray's amendment would codify current law, which 
permits OSHA to investigate informal complaints--those which 
are not written and signed by an employee--by phone or fax, 
while guaranteeing the right to have OSHA perform an on-sight, 
physical inspection of the workplace if an employee signs a 
complaint alleging violations that could kill or seriously 
injure workers. The majority defeated the Murray amendment on a 
party-line vote of 8 to 10.

Federal contracts debarment

    Senator Harkin offered an amendment to prohibit any 
employer from obtaining federal contracts when it has 
demonstrated a clear pattern and practice of committing serious 
violations of the OSH Act. This amendment is consistent with 
the General Accounting Office recommendation of August 1996, 
which urges the Department of Labor to examine debarment as an 
additional tool to improve workplace safety and 
health.53
---------------------------------------------------------------------------
    \53\ GAO/HEHS 96-157 (1996).
---------------------------------------------------------------------------
    The debarment approach to encourage compliance with other 
labor laws has already proven effective. For example, the 
Davis-Bacon Act contains a debarment provision, and for the 
last 60 years this provision has provided a deterrent against 
violations of the law.
    The Harkin amendment was also consistent with the 
Majority's arguments for S. 385: that OSHA's enforcement reach 
is too short, and that future additional funding for federal 
compliance staff is unlikely. The sponsors of S. 385 have 
argued that additional enforcement strategies are needed.
    Debarment for serious workplace violations is a reasonable 
and common sense approach. When contractors exhibit a clear 
pattern or practice of exposing their workers to serious 
violations of existing regulations--violations that are likely 
to cause serious bodily harm or death--they should not be 
rewarded with additional federal dollars. If the Majority is 
correct that 95 percent of employers are doing their best to 
provide a safe and healthy workplace, there is no reason for to 
rely on the 5 percent who are consistently negligent or 
reckless to perform the government's work.
    The Harkin amendment would have provided a major incentive 
for firms to keep their workplaces safe, but it was defeated on 
a party-line vote of 8 to 10.

                               conclusion

    S. 385 is unconstitutional legislation that would endanger 
the safety, health, and lives of American workers. Section 3, 
in particular, is an unconstitutional provision that would 
invite abuse by bad actors and obstruct OSHA's ability to 
protect workers from dangerous hazards in the workplace.
    Although Section 3 is the most objectionable provision of 
the SAFE Act, the Minority finds several other provisions of 
this legislation highly objectionable. S. 385 creates new 
employer defenses that would effectively render OSHA 
regulations meaningless. It gives employers one bite at the 
apple before they need to comply with safety and health 
regulations. It tramples on employee inspection rights and 
permits OSHA to forgo complaint investigations, even when 
employees are at risk. And it creates fee-for-service 
consultation programs that would put small, less wealthy 
businesses at a serious disadvantage.
    Assistant Secretary Jeffress testified before the 
Subcommittee on March 4, 1999, that ``if S. 385 were passed, as 
drafted, the Secretary again would be forced to recommend a 
veto.'' 54 The Minority agrees that the 
Administration should veto this legislation, if enacted. For 
all the reasons stated above, the Minority strongly opposes S. 
385.
---------------------------------------------------------------------------
    \54\ Hearing on S. 385 Before the Senate Subcommittee on 
Employment, Safety, and Training, 106th Congress, 1st Session (March 4, 
1999), at 15.

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

                             Harvard University Law School,
                                 Cambridge, MA, September 14, 1999.
Hon. Edward Kennedy,
Russell Senate Office Building,
Washington, DC.
    Dear Senator Kennedy: You have asked me to analyze the 
constitutional issues posed by S. 385, the ``SAFE Act,'' which 
would in effect allow private individuals to exempt employers 
from OSHA penalties. This letter reflects the results of that 
analysis. I should emphasize at the outset that I have given no 
thought to the policy implications of S. 385 and have no 
personal views one way or the other as to the wisdom of the 
measure, or the balance of costs and benefits that might lead 
one who felt unconstrained by the Constitution either to 
support or to oppose it. Strictly as a federal constitutional 
matter, I believe that Section 3--Third Party Consultation--
cannot pass muster.
    There is no question that the private ``consultants'' with 
whom employers may contract to advise them as to whether they 
are in compliance with the requirements of the Occupational 
Safety and Health Act of 1970 (``OSHA''), including regulations 
promulgated under OSHA, are entrusted with important 
governmental responsibilities by Section 3 of S. 385. For, with 
limited exceptions, an employer armed with a ``certificate of 
compliance'' from one of these ``consultants'' enjoys immunity 
from the imposition of civil penalties under OSHA for a period 
of twelve months.
    Although consultants must, under S. 385, be certified by 
the Secretary of Labor as qualified to provide this immunity-
conferring certificate, and although such consultants are 
removable from their positions by the Secretary upon ``failure 
to meet the requirements of the program'' or upon the 
commission of ``malfeasance, gross negligence, collusion or 
fraud in connection with any consultation service provided by 
the * * * consultant,'' there is nothing in the statutory 
scheme that prevents these consultants from performing a 
significant and indeed powerful role in the implementation and 
execution of a congressional enactment, OSHA. Their role is in 
no sense merely advisory; they are delegated the power to 
interpret and apply OSHA's requirements to particular employers 
and specific situations, and thereupon to take action--either 
issuing or refusing to issue a certificate of compliance--that 
has dramatic legal consequences for the employer involved, for 
his, her or its employees, and for the public. Yes these 
consultants remain private individuals, rather than public 
officials appointed in accord with the Appointments Clause of 
the Constitution, Article II, Section 2, Clause 2.
    Because these consultants are removable by the Secretary 
only for failure to perform their duties or for malfeasance in 
office, and are not subject to the day-to-day supervision of 
any executive officer, they certainly cannot be described as 
adjuncts of the Executive Branch. Nor, despite the significant 
interpretive functions they perform with respect to the 
provisions of OSHA and its regulations across the entire range 
of industries and economic sectors covered by OSHA, can these 
consultants be regarded as functionaries within the Judicial 
Branch. Finally, because their actions affect legal rights, 
duties, and responsibilities of ordinary citizens and companies 
rather than simply facilitating the work of Congress, they 
cannot be deemed auxiliaries of the Legislative Branch.
    Even though the Supreme Court has been relatively tolerant 
over the past six decades or so of federal laws delegating 
power to executive officials or even to officials of 
independent agencies appointed in accord with Article II, it 
has been understandably concerned about delegations of power to 
private individuals or entities. Those delegations of this 
character that have been upheld have tended to involve 
delegations of a ``more or less technical nature,'' A.L.A. 
Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 
(1935), or delegations of a power simply to reject or veto 
specific courses of action--not delegations of broadly 
discretionary authority to construe and apply federal 
regulatory measures, with the power effectively to suspend the 
operation of those measures to restrain particular regulated 
entities. If, as the Supreme Court recently held in Clinton v. 
New York, 524 U.S. 417 (1998), not even the President may be 
armed by Congress with a line-item veto enabling the Chief 
Executive to cancel or rescind part of a duly enacted statute, 
it would seem to follow a fortiori that a private citizen 
cannot be armed by Congress with a line-item suspension power 
enabling that citizen to shield another from the consequences 
of non-compliance with a law duly enacted by Congress.
    Beyond this constitutional infirmity, it seems impossible 
to escape the conclusion that the enforcement and anti-
enforcement powers of consultants appointed under Section 3 of 
S. 385 would be broad enough to require their appointment as 
``Officers of the United States'' in accord with the strictures 
of Article II, Section 2, Clause 2--something for which the 
proposed law obviously does not provide. Although these 
consultants undoubtedly have less wide-ranging powers than 
those the Supreme Court found impermissibly entrusted to non-
Officers of the United States in Buckley v. Valeo, 424 U.S. 1 
(1976) (invalidating the statute creating the Federal Election 
Commission insofar as it entrusted such enforcement powers as 
the power to institute civil actions against violators of the 
statute to individuals appointed by the President pro tempore 
of the Senate and the Speaker of the House), the powers wielded 
by S. 385-consultants cannot be regarded as entailing anything 
less than significant authority under the laws of the United 
States. Accordingly, under the separation of powers principles 
articulated in Buckley and adhered to ever since, those 
consultants would have to be appointed by the President or, 
pursuant to federal legislation, by the Courts of Law of the 
Heads of Departments. Even assuming that these consultants, 
despite the lack of direct supervision by the Secretary, could 
be deemed ``inferior'' officers within the meaning of Morrison 
v. Olson, 487 U.S. 654 (1988), and thus could be appointed 
without confirmation by the Senate, the proposed statute fails 
to provide for their appointment by any of the authorized 
repositories of appointment power under Article II. The 
Secretary of Labor is, to be sure, among the ``Heads of 
Departments,'' but it is not the Secretary under S. 385 who 
appoints the consultants. Although the Secretary is given a 
role in certifying a given consultant to perform the services 
required, the selection process is placed entirely in the self-
interested hands of the employers regulated by OSHA--the very 
antithesis of the public-minded process that the Constitution 
is structured to ensure in the notice of those who would wield 
significant power over the public under laws enacted by 
Congress.
    For all these reasons, and for the reasons additionally, 
elaborated by the Department of Justice in its analysis of 
April 28, 1999, it is my conclusion that S. 385 would violate 
the separation of powers, would permissibly delegate 
discretionary federal authority to private individuals, would 
resemble the line-item veto in entrusting to individuals 
outside Congress the power effectively to nullify on a 
temporary basis duly enacted provisions of federal legislation, 
and would transgress the Constitution's carefully wrought 
structure for the appointment of those exercising significant 
public authority implementing the laws of the United States. 
Whether S. 385 is a good or a bad idea in policy terms. I 
believe it violates the Constitution.
            Sincerely yours,
                                                 Laurence H. Tribe.

                XI. Executive Agency Comments on S. 385

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                    Washington, DC, April 29, 1999.
Hon. Edward M. Kennedy,
Ranking Minority Member, Committee on Health, Education, Labor and 
        Pensions, U.S. Senate, Washington, DC.
    Dear Senator Kennedy: This letter sets forth the views of 
the Office of Legal Counsel on the Safety Advancement for 
Employees Act of 1999 (``SAFE Act''), S. 385. Due to time 
constraints, our comments are necessarily preliminary. The 
scheme established by the SAFE Act appears to be a novel one, 
and it is therefore difficult to predict how a court would 
assess its constitutionality. S. 385 does, however, appear to 
raise substantial constitutional concerns involving the 
separation of powers.
    Section 3 of S. 385 would establish a ``third party 
consultation services program'' under the Occupational Safety 
and Health Act of 1970 (``OSH Act''), 29 U.S.C. Sec. Sec. 651 
et seq. Under that program, an employer may contract with a 
private ``consultant,'' who would conduct an ``evaluation of 
the workplace of an employer to determine if the employer is in 
compliance with the requirements of [the OSH Act], including 
any regulations promulgated pursuant to [the] Act.'' Section 
3(a) (adding sec. 8A(e)(1)). If an employer receives a 
``certificate of compliance'' from the consultant, the 
``employer shall be exempt from the assessment of any civil 
penalty under section 17 for a period of 1 year after the date 
on which the employer receives such certificate.'' Id. (sec. 
8A(f)(1)). There are two exceptions to an employer's one-year 
exemption from civil penalties: (1) ``if the employer has not 
made a good faith effort to remain in compliance as required 
under the certificate of compliance''; and (2) ``to the extent 
that there has been a fundamental change in the hazards of the 
workplace.'' Id. (sec. 8A(f)(2)).
    The bill provides that consultants must be certified by the 
Secretary of Labor to provide consultation services, and it 
lists categories of professionals who shall be eligible for 
such certification, including state-licensed physicians, 
engineers, safety professionals, occupational nurses, and 
persons 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. Id. (sec. 8A(b)(2)). Finally, the Secretary may 
revoke the status of a qualified consultant if the consultant 
``has failed to meet the requirements of the program'' or ``has 
committed malfeasance, gross negligence, collusion or fraud in 
connection with any consultation services provided by the 
qualified consultant.'' Id. (sec. 8A(d)).
    The Constitution establishes a system of separate powers, 
and it provides that ``[t]he executive Power shall be vested in 
a President of the United States of America,'' U.S. Const. art. 
II, Sec. 1, who ``shall take Care that the Laws be faithfully 
executed,'' id. art. II. Sec. 3. A statute violates the 
separation of powers if it `` `impermissibly undermine[s]' the 
powers of the Executive Branch, * * * or `disrupts the proper 
balance between the coordinate branches [by] prevent[ing] the 
Executive Branch from accomplishing its constitutionally 
assigned functions. * * *' '' Morrison v. Olson, 487 U.S. 654, 
695 (1988) (citations omitted).
    The SAFE Act implicates these principles because it 
delegates to private entities outside the executive branch 
substantial authority to execute the laws. The functions 
permitted to be carried out by consultants under the bill are 
central executive functions. Indeed, ``[i]nterpreting a law 
enacted by Congress to implement the legislative mandate is the 
very essence of `execution' of the law. Bowsher v. Synar, 478 
U.S. 714, 733 (1986). Private consultants under the bill would 
be doing precisely what executive agencies typically do: 
administer a federal regulatory program by determining whether 
individuals are in compliance with a federal statute and 
regulations. Moreover, the bill would constrain the executive 
branch's implementation of the law in a tangible way--by making 
employers exempt for a period of one year from civil penalties 
otherwise assessable under the OSH Act.\1\
---------------------------------------------------------------------------
    \1\ Section 17 of the OSH Act, 29 U.S.C. Sec. 666, provides for 
various civil penalties for violations of the Act. It also provides for 
criminal penalties for willful violations resulting in an employee's 
death, for giving unauthorized advance notice of an OSHA inspection, 
and for false statements. Certification by a private consultant under 
this proposal would not exempt employers from criminal penalties.
---------------------------------------------------------------------------
    Delegating some executive functions to entities outside the 
executive branch does not necessarily violate the Constitution. 
In Morrison v. Olson, the Court upheld the grant of 
investigative and prosecutorial authority under the Ethics in 
Government Act to the independent counsel, an individual 
neither appointed nor removable at will by the President. The 
Court concluded that the statute did not prevent the executive 
branch from performing its constitutionally assigned duties, 
emphasizing the degree of control retained by the Attorney 
General in initiating an investigation and in being able to 
remove the independent counsel for ``good cause.'' 487 U.S. at 
695-96; see also United States ex rel. Kelly v. Boeing Co. 9 
F.3d 743 (9th Cir. 1993) (upholding delegation of litigation 
authority on behalf of the United States to private individuals 
under qui tam provisions of the False Claims Act).
    Another common form of delegation that generally does not 
present a constitutional problem is the grant of authority to 
private parties (or to state, local, or tribal officials) to 
stop federal action by declining to consent to it. Such 
legislation ``merely sets a condition on the executive branch's 
exercise of authority that the executive would not possess at 
all in the absence of the legislation.'' Memorandum for the 
General Counsels of the Federal Government from Walter 
Dellinger, Assistant Attorney General, Office of Legal Counsel, 
Re: The Constitutional Separation of Powers Between the 
President and Congress 58 n.135 (May 7, 1996) (``Dellinger 
Memo''). Thus, in upholding a statute requiring a supermajority 
of regulated farmers to agree before the Secretary of 
Agriculture could exercise certain powers, the Supreme court 
rejected the argument that the statute impermissible delegated 
legislative power: ``Congress has merely placed a restriction 
upon its own regulation by withholding its operation as to a 
given market `unless two-thirds of the growers voting favor 
it.' '' Currin v. Wallace, 306 U.S. 1, 15 (1939).\2\
---------------------------------------------------------------------------
    \2\ Currin and similar decisions address the nondelegation 
doctrine, which prohibits standardless grants of legislative power, 
rather than theimpairment of executive power under separation of powers 
principles. The nondelegation doctrine is essentially moribund in the 
courts, see, e.g., Yakus v. United States, 321 U.S. 414 (1944) 
(upholding broad delegation), but for reasons parallel to those the 
Court relied on in Currin, we think that the growers' ``veto'' at issue 
there would not violate the separation of powers. See Memo at 58 n.135.
---------------------------------------------------------------------------
    The SAFE Act would effect a type of delegation to private 
entities that is somewhat different from those addressed by the 
authorities of which we are aware. See generally Harold J. 
Krent, Fragmenting the Unitary Executive: Congressional 
Delegations of Administrative Authority Outside the Federal 
Government, 85 Nw. U. L. Reve. 62, 84-93 (1990) (surveying 
congressional delegations to private entities). The bill 
appears to go beyond other examples of such delegation in 
impairing the ability of the executive branch to execute the 
laws. First, the functions given to private consultants under 
the bill are more in the nature of execution of the laws than, 
for example, the authority of an industry to ``veto'' the 
substance of the proposed regulation in Currin. The SAFE Act, 
like the ``veto'' legislation, can be viewed as imposing a 
condition on Congress's regulation of a certain field 
(workplace safety) that Congress could choose not to regulate 
at all, but the condition here works in a different manner. 
While the ``veto'' legislation involves whether the law applies 
to a particular group, the SAFE Act implicates the Secretary's 
power to make case-by-case determinations as to whether 
admittedly applicable law has been violated.
    Second, the authority given to consultants under the SAFE 
Act would be particularly broad-based. It is not merely 
authority over a specified industry, or particular technical 
matters (although the bill does provide that consultants may 
only provide services coinciding with their expertise), but 
authority to determine employers' compliance with the entirety 
of the OSH Act and regulations under that Act.\3\ Cf. A.L.A. 
Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 
(1935) (suggesting that ``matters of a more or less technical 
nature'' could be delegated to private parties).
---------------------------------------------------------------------------
    \3\ Under section 5 of the OSH Act, 29 U.S.C. Sec. 654, each 
employer has a general duty to furnish employees with employment and a 
workplace ``free from recognized hazards that are causing or are likely 
to cause death or serious physical harm to his employees,'' id. 
Sec. 654(a)(1), as well as a duty to comply with specific occupational 
safety and health standards promulgated by regulation, id. 
Sec. 654(a)(2).
---------------------------------------------------------------------------
    Third, the limited degree of executive branch control over 
the consultants' exercise of authority for which the proposal 
provides may not be constitutionally adequate. It is true that 
consultants would have to be certified by the Secretary of 
Labor, and could be de-certified for ``malfeasance'' or other 
reasons. In addition, the Secretary would retain certain 
limited authority with respect to employers that have 
contracted with consultants, including the authority to impose 
criminal penalties and to ``inspect and investigate'' worksites 
covered by a certificate of compliance. But the bill provides 
for no executive branch supervision of the day-to-day 
activities of consultants determining compliance with the OSH 
Act. Moreover, if a consultant had issued a certificate of 
compliance, then OSHA could not impose any civil penalties upon 
an employer for a year, so a de-certification of the consultant 
would do little to protect the executive's authority with 
respect to particular violations.
    By eliminating the executive's control over the enforcement 
of the law, the bill would threaten one of the core values 
protected by the Constitution's placement of the executive 
power in a single President: political accountability. Because 
these private consultants would not be directly responsible to 
the President, the public's ultimate check on negligent or 
arbitrary government action would be weakened.Hamilton's 
objection in Federalist No. 70 to a plural executive also has 
some bearing here. Use of private consultants to certify OSH 
Act compliance risks creating a situation in which 
accountability ``is shifted from one to another with so much 
dexterity, and under such plausible appearances, that the 
public opinion is left in suspense about the real author. * * * 
[I]t may be impracticable to pronounce to whose account the 
evil which may have been incurred is truly chargeable.'' The 
Federalist No. 70, at 427-28 (Clinton Rossiter ed., 1961).
    For these reasons, we have seroius reservations about the 
constitutionality of the SAFE Act. Please do not hesitate to 
call upon us if we may be of additional assistance. The Office 
of Management and Budget advises that there is no objection to 
submission of this report and that enactment of S. 385 would 
not be in accord with the Administration's program.
            Sincerely,
                                           Jon P. Jennings,
                                 Acting Assistant Attorney General.

                      XII. Change 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 or section thereof to be amended or 
replaced (existing law proposed to be omitted is enclosed in 
black brackets, new matter is printed in italic, existing law 
in which no change is proposed is shown in roman):

               OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

           *       *       *       *       *       *       *


    Section 1. * * *

           *       *       *       *       *       *       *


                   congressional findings and purpose

    Sec. (2) * * *

           *       *       *       *       *       *       *

          (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.

           *       *       *       *       *       *       *


                  advisory committees; administration

    Sec. 7. (a)(1) * * *

           *       *       *       *       *       *       *

    (d)(1) Not later than 6 months after the date of enactment 
of this subsection, the Secretary shall establish an advisory 
committee (pursuant to the Federal Advisory Committee Act (5 
U.S.C. App.)) to carry out the duties described in paragraph 
(3).
    (2) the advisory committee shall be composed of--
          (A) 3 members who are employees;
          (B) 3 members who are employers;
          (C) 2 members who are members of the general public; 
        and
          (D) 1 member who is a State official from a State 
        plan State.
Each member of the advisory committee shall have expertise in 
workplace safety and health as demonstrated by the educational 
background of the member.
    (3) The advisory committee shall advise and make 
recommendations to the Secretary with respect to the 
establishment and implementation of a consultation services 
program under section 8A.

             INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING

    Sec. 8. (a) * * *

           *       *       *       *       *       *       *

    (f)(1) * * *

           *       *       *       *       *       *       *

    (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.

           *       *       *       *       *       *       *

    (i) Any Federal employee responsible for enforcing this Act 
shall, not later than 2 years after the date of enactment of 
this subsection or 2 years after the initial employment of the 
employee involved, meet the eligibility requirements prescribed 
under subsection (b)(2) of section 8A.
    (j) The Secretary shall ensure that any Federal employee 
responsible for enforcing this Act who carries out inspections 
or investigations under this section, receive professional 
education and training at least every 5 years as prescribed by 
the Secretary.

SEC. 8A. THIRD PARTY CONSULTATION SERVICES PROGRAM.

    [(a) Purpose. recognizing that
         [(1) employee safety is of paramount concern;
         [(2) employers are overburdened by regulations and are 
        unable to read through, understand and effectively 
        comply with the voluminous requirements of this Act, 
        and
         [(3) the Secretary is unable to individually satisfy 
        the compliance needs of each employer and employee 
        within its jurisdiction;
it is]
    (a) Purpose.--It is the purpose of this section to 
encourage employees to conduct voluntary safety and health 
audits using the expertise of qualified safety and health 
consultants and to proactively seek individualized solutions to 
workplace safety and health concerns.
    (b) Establishment of Program.--
          (1) In general.--Not later than 18 months after the 
        date of enactment of this section, the Secretary, in 
        consultation with the advisory committee established 
        under section 7(d), shall establish and implement, by 
        regulation, a program that qualifies individuals to 
        provide consultation services to employers to assist 
        employers in the identification and correction of 
        safety and health hazards in the workplaces of 
        employers.
          (2) Eligibility.--The following individuals shall be 
        eligible to be qualified under the program under 
        paragraph (1) as certified safety and health 
        consultants:
                  (A) An individual who is licensed by a State 
                authority as a physician, industrial hygienist, 
                professional engineer, safety engineer, safety 
                professional, or registered nurse.
                  (B) An individual who has been employed as an 
                inspector for a State plan State or as a 
                Federal occupational safety and health 
                inspector for not less than a 5-year period.
                  (C) An individual who is qualified in an 
                occupational health or safety field by an 
                organization whose program has been accredited 
                by a nationally recognized private 
                accreditation organization or by the Secretary.
                  (D) An individual who has not less than 10 
                years expertise in workplace safety and health.
                  (E) Other individuals determined to be 
                qualified by the Secretary.
          (3) Geographical scope of consultation services.--A 
        consultant qualified under the program under paragraph 
        (1) may provide consultation services in any State.
          (4) Limitation based on expertise.--A consultant 
        qualified under the program under paragraph (1) may 
        only provide consultation services to an employer with 
        respect to a worksite if the work performed at that 
        worksite coincides with the particular expertise of the 
        individual.
    (c) Safety and Health Registry.--The Secretary shall 
develop and maintain a registry that includes all consultants 
that are qualified under the program under subsection (b)(1) to 
provide the consultation services described in subsection (b) 
and shall publish and make such registry readily available to 
the general public.
    (d) Disciplinary Actions.--The Secretary may revoke the 
status of a consultant qualified under subsection (b), or the 
participation of an employer under subsection (b) in the third 
party consultation program, if the Secretary determines that 
the consultant or employer--
          (1) has failed to meet the requirements of the 
        program; or
          (2) has committed malfeasance, gross negligence, 
        collusion or fraud in connection with any consultation 
        services provided by the qualified consultant.
    (e) Program Requirements.--
          (1) Full service consultation.--The consultation 
        services described in subsection (b), and provided by a 
        consultant qualified under the program under subsection 
        (b)(1), shall include an evaluation of the workplace of 
        an employer to determine if the employer is in 
        compliance with the requirements of this Act, including 
        any regulations promulgated pursuant to this Act. 
        Employers electing to participate in such program shall 
        contract with a consultant qualified under subsection 
        (b)(2) to perform a full service visit and consultation 
        covering the employer's establishment, including a 
        complete safety and health program review. Following 
        the guidance as specified in this section, the 
        consultant shall discuss with the employer the elements 
        of an effective program.
          (2) Consultation report.--
                  (A) In general.--After a consultant conducts 
                a comprehensive survey of an employer under a 
                program under this section, the consultant 
                shall prepare and submit to the employer a 
                written report that includes an action plan 
                identifying any violations of this Act, and any 
                appropriate corrective measures to address the 
                violations that are identified using and 
                effective safety and health program.
                  (B) Elements.--A consultation report shall 
                contain each of the following elements.
                          (i) Action plan.--
                                  (I) In general.--An action 
                                plan under subparagraph (A) 
                                shall be developed in 
                                consultation with the employer 
                                as part of the initial 
                                comprehensive survey. The 
                                consultant and the employer 
                                shall jointly use the on site 
                                time in the initial visit to 
                                the employer's place of 
                                business to agree on the terms 
                                of the action plan and the time 
                                frames for achieving specific 
                                items.
                                  (II) Requirements.--The 
                                action plan shall outline the 
                                specific steps that must be 
                                accomplished by the employer 
                                prior to receiving a 
                                certificate of compliance. The 
                                action plan shall address in 
                                detail
                                          (aa) the employer's 
                                        correction of all 
                                        identified safety and 
                                        health hazards, with 
                                        applicable time frames;
                                          (bb) the steps 
                                        necessary for the 
                                        employer to implement 
                                        an effective safety and 
                                        health program, with 
                                        applicable time frames; 
                                        and
                                          (cc) a statement of 
                                        the employer's 
                                        commitment to work with 
                                        the consultation 
                                        project to achieve a 
                                        certificate of 
                                        compliance.
                          (ii) Safety and health program.--An 
                        employer electing to participate in a 
                        program under this section shall 
                        establish a safety and health program 
                        to manage workplace safety and health 
                        to reduce injuries, illnesses and 
                        fatalities that complies with paragraph 
                        (3). Such safety and health program 
                        shall be appropriate to the conditions 
                        of the workplace involved.
          (3) Requirements for safety and health program.--
                  (A) Written program.--An employer electing to 
                participate shall maintain a written safety and 
                health program that contains policies, 
                procedures, and practices to recognize and 
                protect their employees from occupational 
                safety and health hazards. Such procedures 
                shall include provisions for the 
                identification, evaluation and prevention or 
                control of workplace hazards.
                  (B) Major elements.--A safety and health 
                program shall include the following elements, 
                and may include other elements as necessary to 
                the specific worksite involved and as 
                determined appropriate by the qualified 
                consultant and employer:
                          (i) Employer commitment and employee 
                        involvement.--
                                  (I) In general.--The 
                                existence of both management 
                                leadership and employee 
                                participation must be 
                                demonstrated in accordance with 
                                subclauses (II) and (III).
                                  (II) Management leadership.--
                                To make a demonstration of 
                                management leadership under 
                                this subclause, the employer 
                                shall--
                                          (aa) set a clear 
                                        worksite safety and 
                                        health policy that 
                                        employees can fully 
                                        understand;
                                          (bb) set and 
                                        communicate clear goals 
                                        and objectives with the 
                                        involvement of 
                                        employees;
                                          (cc) provide 
                                        essential safety and 
                                        health leadership in 
                                        tangible and 
                                        recognizable ways;
                                          (dd) set positive 
                                        safety and health 
                                        examples; and
                                          (ee) perform 
                                        comprehensive reviews 
                                        of safety and health 
                                        programs for quality 
                                        assurance using a 
                                        process which promotes 
                                        continuous correction.
                                  (III) Employee 
                                participation.--With respect to 
                                employee participation, the 
                                employer shall demonstrate a 
                                commitment to working to 
                                develop a comprehensive, 
                                written and operational safety 
                                and health program that 
                                involves employees in 
                                significant ways that affect 
                                safety and health. In making 
                                such a demonstration, the 
                                employer shall--
                                          (aa) provide for 
                                        employee participation 
                                        in actively identifying 
                                        and resolving safety 
                                        and health issues in 
                                        tangible ways that 
                                        employees can clearly 
                                        understand;
                                          (bb) assign safety 
                                        and health 
                                        responsibilities in 
                                        such a way that 
                                        employees can 
                                        understand clearly what 
                                        is expected of them;
                                          (cc) provide 
                                        employees with the 
                                        necessary authority and 
                                        resources to meet their 
                                        safety and health 
                                        responsibilities; and
                                          (dd) provide that 
                                        safety and health 
                                        performance for 
                                        managers, supervisors 
                                        and employees be 
                                        measured in tangible 
                                        ways.
                          (ii) Workplace analysis.--The 
                        employer, in consultation with the 
                        consultant, shall systematically 
                        identify and assess hazards in the 
                        following ways:
                                  (I) Conduct corrective action 
                                and regular expert surveys to 
                                update hazard inventories.
                                  (II) Have competent personnel 
                                review every planned or new 
                                facility, process material, or 
                                equipment.
                                  (III) Train all employees and 
                                supervisors, conduct routine 
                                joint inspections, and correct 
                                items identified.
                                  (IV) Establish a way for 
                                employees to report hazards and 
                                provide prompt responses to 
                                such reports.
                                  (V) investigate worksite 
                                accidents and near accidents.
                                  (VI) Provide employees will 
                                the necessary information 
                                regarding incident trends, 
                                causes and means of prevention.
                          (iii) Hazard prevention.--The 
                        employer, in consultation with the 
                        consultant, shall--
                                  (I) engage in timely hazard 
                                control, working to ensure that 
                                hazard controls are fully in 
                                place and communicated to 
                                employees, with emphasis on 
                                engineering controls and 
                                enforcing safe work procedures;
                                  (II) maintain equipment using 
                                operators who are trained to 
                                recognize maintenance needs and 
                                perform or direct timely 
                                maintenance;
                                  (III) provide training on 
                                emergency planning and 
                                preparation, working to ensure 
                                that all personnel know 
                                immediately how to respond as a 
                                result of effective planning, 
                                training, and drills;
                                  (IV) equip facilities for 
                                emergencies with all systems 
                                and equipment in place and 
                                regularly tested so that all 
                                employees know how to 
                                communicate during emergencies 
                                and how to use equipment; and
                                  (V) provide for emergency 
                                medical situations using 
                                employees who are fully trained 
                                in emergency medicine.
                          (iv) Safety and health training.--The 
                        employer, in consultation with the 
                        consultant, shall--
                                  (I) involve employees in 
                                hazard assessment, development 
                                and delivery of training;
                                  (II) actively involve 
                                supervisors in worksite 
                                analysis by empowering them to 
                                ensure physical protections, 
                                reinforce training, enforce 
                                discipline, and explain work 
                                procedures; and
                                  (III) provide training in 
                                safety and health management to 
                                managers.
          (4) Reinspection.--At a time agreed to by the 
        employer and the consultant may reinspect the workplace 
        of the employer to verify that the required elements in 
        the consultation report have been satisfied. If such 
        requirements have been satisfied, the employer shall be 
        provided with a certificate of compliance for that 
        workplace by the qualified consultant.
    (f) Exemption From Civil Penalties for Compliance.--
          (1) In general.--If an employer enters into a 
        contract with an individual qualified under the program 
        under this section, to provide consultation services 
        described in subsection (b), and receives a certificate 
        of compliance under subsection (e)(4), the employer 
        shall be exempt from the assessment of any civil 
        penalty under section 17 for a period of 1 year after 
        the date on which the employer receives such 
        certificate.
          (2) Exceptions.--An employer shall not be exempt 
        under paragraph (1)--
                  (A) if the employer has not made a good faith 
                effort to remain in compliance as required 
                under the certificate of compliance; or
                  (B) to the extent that there has been a 
                fundamental change in the hazards of the 
                workplace.
    (g) Right To Inspect.--Nothing in this section shall be 
construed to affect the rights of the Secretary to inspect and 
investigate worksites covered by a certificate of compliance.
    (h) Renewal Requirements.--An employer that is granted a 
certificate of compliance under this section may receive a 1 
year renewal of the certificate if the following elements are 
satisfied:
          (1) A qualified consultant shall conduct a complete 
        onsite safety and health survey to ensure that the 
        safety and health program has been effectively 
        maintained or improved, workplace hazards are under 
        control, and elements of the safety and health program 
        are operating effectively.
          (2) The consultant, in an onsite visit by the 
        consultant, has determined that the program 
        requirements have been complied with and the health and 
        safety program has been operating effectively.
    (i) Non-fixed Work Sites.--With respect to employer 
worksites that do not have a fixed location, a certificate of 
compliance shall only apply to that worksite which satisfies 
the criteria under this section and such certificate shall not 
be portable to any other worksite. This section shall not apply 
to service establishments that utilize essentially the same 
work equipment at each non-fixed worksite.

                               CITATIONS

    Sec. 9. [(a) If, upon inspection or investigation, the 
Secretary or his authorized representative believes that an 
employer has violated a requirement of section 5 of this Act, 
of any standard, rule or order promulgated pursuant to section 
6 of this Act, or of any regulations prescribed pursuant to 
this Act, he shall with reasonable promptness issue a citation 
to the employer. Each citation shall be in writing and shall 
describe with particularity the nature of the violation, 
including a reference to the provision of the Act, standard, 
rule, regulation, or order alleged to have been violated. In 
addition, the citation shall fix a reasonable time for the 
abatement of the violation. The Secretary may prescribe 
procedures for the issuance of a notice in lieu of a citation 
with respect to de minimis violations which have no direct or 
immediate relationship to safety or health.]
    (a)(1) Nothing in this Act shall be construed as 
prohibiting the Secretary or the authorized representative of 
the Secretary from providing technical or compliance assistance 
to an employer in correcting a violation discovered during an 
inspection or investigation under this Act without issuing a 
citation.
    (2) Except as provided in paragraph (3), if, upon an 
inspection or investigation, the Secretary or an authorized 
representative of the Secretary believes that an employer has 
violated a requirement of section 5, of any regulation, rule, 
or order promulgated pursuant to section 6, or of any 
regulations prescribed pursuant to this Act, the Secretary may 
with reasonable promptness issue a citation to the employer. 
Each citation shall be in writing and shall describe with 
particularity the nature of a violation, including a reference 
to the provision of the Act, regulation, rule, or order alleged 
to have been violated. The citation shall fix a reasonable time 
for the abatement of the violation.
    (3) The Secretary or the authorized representative of the 
Secretary--
          (A) may issue a warning in lieu of a citation with 
        respect to a violation that has no significant 
        relationship to employee safety and 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) A citation issued under subsection (a) to an employer 
who violates section 5, any standard, rule, or order 
promulgated pursuant to section 6, or any other regulation 
promulgated under this Act shall be vacated if such employer 
demonstrates that the employees of such employer were protected 
by alternative methods that are equally or more protective of 
the safety and health of the employees than the methods 
required by such standard, rule, order, or regulation in the 
factual circumstances underlying the citation.
    (e) Subsection (d) shall not construed to eliminate or 
modify other defenses that may exist to any citation.

                    training and employee education

    Sec. 21. (a) * * *

           *       *       *       *       *       *       *

    [(c) The] (c)(1) The Secretary, in consultation with the 
Secretary of Health, Education, and Welfare, shall [(1) 
provide] (A) provide for the establishment and supervision of 
programs for the education and training of employers and 
employees in the recognition, avoidance, and prevention of 
unsafe or unhealthful working conditions in employments covered 
by this Act, and [(2) consult] (B) consult with and advise 
employers and employees, and organizations representing 
employers and employees as to effective means of preventing 
occupational injuries and illnesses.
    (2)(A) The Secretary shall, through the authority granted 
under section 7(c) and paragraph (1), enter into cooperative 
agreements with States for the provision of consultation 
services by such States to employers concerning the provision 
of safe and healthful working conditions.
    (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).
    (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 of not of 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.
    [(d)(1)] (e)(1) The Secretary shall establish and support 
cooperative agreements with the States under which employers 
subject to this Act may consult with State personnel with 
respect to--

           *       *       *       *       *       *       *


SEC. 35. ALCOHOL AND SUBSTANCE ABUSE TESTING.

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

                                  
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