I

103D CONGRESS

2D SESSION H. R. 2937

To amend the Occupational Safety and Health Act of 1970 to make needed

revisions in regulations and programs.

IN THE HOUSE OF REPRESENTATIVES

AUGUST 6, 1993

Mr. FAWELL (for himself, Mr. GOODLING, Mr. PETRI, Mr. GUNDERSON, Mr.

BALLENGER, Ms. MOLINARI, Mr. BARRETT of Nebraska, Mr. HOEKSTRA,

Mr. MCKEON, Mr. MILLER of Florida, and Mr. POMBO) introduced the

following bill; which was referred to the Committee on Education and

Labor

FEBRUARY 10, 1994

Additional sponsors: Mr. GREENWOOD, Mr. PACKARD, and Mr. ARMEY

A BILL

To amend the Occupational Safety and Health Act of 1970

to make needed revisions in regulations and programs.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Occupational Safety and Health Reform Act’’.

6 (b) REFERENCE.—Whenever in this Act an amend7 ment or repeal is expressed in terms of an amendment
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1 to, or repeal of, a section or other provision, the reference

2 shall be considered to be made to a section or other provi3 sion of the Occupational Safety and Health Act of 1970.

4 SEC. 2. PUBLIC EMPLOYEES.

5 (a) DEFINITION OF EMPLOYER.—Section 3(5) (29

6 U.S.C. 652(5)) is amended—

7 (1) by striking out ‘‘but does not include the

8 United States or’’ and inserting in lieu thereof ‘‘in9 cluding the executive and judicial branches of the

10 Government and’’, and

11 (2) by inserting before the period a comma and

12 the following: ‘‘except that such term does not in13 clude public agencies which primarily rely upon vol14 unteers (as defined in the Fair Labor Standards Act

15 of 1938) to operate or provide services to the

16 public’’.

17 (b) STUDY.—The Secretary of Labor shall conduct

18 a study on the potential costs of extending the Occupa19 tional Safety and Health Act of 1970 to public agencies

20 and shall provide a separate estimate for extending the

21 Act to agencies described in subsection (a)(2). The Sec22 retary shall complete such study within one year of the

23 date of the enactment of this Act and report the results

24 to the Congress.
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1 (c) CONGRESSIONAL COVERAGE.—Section 19 (29

2 U.S.C. 668) is amended to read as follows:

3 ‘‘COVERAGE OF THE UNITED STATES HOUSE

4 OF REPRESENTATIVES AND INSTRUMEN5 TALITIES OF THE CONGRESS

6 ‘‘SEC. 19. (a) The House of Representatives and each

7 instrumentality of Congress shall establish and maintain

8 an effective program to provide safe and healthful places

9 and conditions of employment. Such programs shall, at a

10 minimum—

11 ‘‘(1) comply with section 5, the occupational

12 safety and health standards issued under section 6,

13 and the requirements and regulations issued under

14 section 8,

15 ‘‘(2) provide for the acquisition and mainte16 nance of safety equipment, personal protective

17 equipment, and devices reasonably necessary to pro18 tect employees, and

19 ‘‘(3) provide for adequate records of all occupa20 tional accidents and illness, provide for the proper

21 evaluation of such records, and provide for necessary

22 corrective action.

23 ‘‘(b) The Secretary shall conduct random inspections

24 of places of employment under the jurisdiction or control

25 of the House of Representatives or any instrumentality of
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1 Congress. Such inspections shall be conducted at least

2 once during each Congress. The Secretary shall also re3 spond to any request that meets the conditions of section

4 8(f). Such inspections shall identify each condition which

5 the Secretary believes is a violation of a requirement under

6 section 5, of an occupational safety and health standard

7 issued under section 6, or of a regulation issued under

8 section 8. Upon completion of such inspection, the Sec9 retary shall report all such conditions to the Director of

10 Non-Legislative and Financial Services of the House of

11 Representatives.

12 ‘‘(c) The Director of Non-Legislative and Financial

13 Services of the House of Representatives shall, as soon

14 after the receipt of a report under subsection (b) as is

15 practicable, appoint a special counsel to seek abatement

16 of any conditions identified in such report as not in com17 pliance with the requirements of section 5 or 6 and to as18 sess appropriate penalties against the instrumentality, em19 ploying authority, or other employer for noncompliance

20 with such requirements. Section 17 shall apply in any en21 forcement procedures brought under this subsection.

22 ‘‘(d) Any instrumentality, employing authority, or

23 other employer which is assessed a penalty under sub24 section (c) may appeal the assessment to the Office of Fair

25 Employment Practices which shall afford an opportunity
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1 for a hearing and shall thereafter issue a decision based

2 on findings of fact which affirms, modifies, or vacates the

3 actions of the special counsel appointed under subsection

4 (c). Any person adversely affected or aggrieved by the de5 cision of the Office of Fair Employment Practices may

6 obtain review of such decision by the United States Court

7 of Appeals for the circuit in which such violation is alleged

8 to have occurred or by the Court of Appeals for the Dis9 trict of Columbia Circuit under the standards and condi10 tions for review of orders by the Commission in section

11 11.

12 ‘‘(e) The Office of Fair Employment Practices shall

13 establish procedures and remedies, consistent with the

14 procedures and remedies under section 11(c), to insure

15 that no employee is discharged or in any manner discrimi16 nated against because such employee has filed a complaint

17 or request for an inspection or instituted or caused to be

18 instituted any proceeding under or related to this Act. Any

19 person adversely affected or aggrieved by the decision of

20 the Office of Fair Employment Practices may obtain re21 view of such decision by the United States Court of Ap22 peals for the circuit in which such violation is alleged to

23 have occurred or by the Court of Appeals for the District

24 of Columbia Circuit under the standards and conditions

25 for review of orders by the Commission in section 11.’’.
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1 SEC. 3. STANDARD SETTING.

2 (a) STANDARDS.—Section 6(b)(5) (29 U.S.C.

3 655(b)(5)) is amended to read as follows:

4 ‘‘(5) The development of standards under this

5 section shall be based upon the latest scientific data

6 in the field and on such research, demonstrations,

7 experiments, and such other information as may be

8 appropriate. In establishing such standards, the Sec9 retary shall consider and make findings concerning

10 the appropriateness of the standard to the following

11 factors:

12 ‘‘(A) The standard is needed to address a

13 significant risk of material impairment to work14 ers and will substantially reduce that risk.

15 ‘‘(B) The standard is feasible.

16 ‘‘(C) There is a reasonable relationship be17 tween the costs and benefits of the standard.

18 ‘‘(D) The standard will provide protection

19 to workers in the most cost-effective manner

20 and minimize employment loss due to the

21 standard in the affected industries and sectors

22 of industries.

23 ‘‘(E) Whenever practicable, the standard

24 shall be expressed in terms of objective criteria

25 and of the performance desired.’’.
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1 (b) STANDARD PRIORITIES.—The second sentence of

2 section 6(g) (29 U.S.C. 655(g)) is amended to read as

3 follows: ‘‘In determining the priority for establishing

4 standards dealing with toxic materials or harmful physical

5 agents, the Secretary shall consider the number of workers

6 exposed to the substance, the nature and severity of poten7 tial impairment, and the likelihood of such impairment

8 based upon such information as the Secretary shall obtain

9 from the Environmental Protection Agency, the Depart10 ment of Health and Human Services, and other appro11 priate sources.’’.

12 (d) PROCEDURE.—Section 6(b)(1) (29 U.S.C.

13 655(b)(1)) is amended by striking out all after ‘‘Act’’ the

14 first time it appears and inserting in lieu thereof the fol15 lowing: ‘‘, the Secretary shall promulgate such rule in ac16 cordance with subchapter IV of chapter 5 of title 5, United

17 States Code, unless the Secretary determines on the basis

18 of the factors listed in section 583 of title 5, United States

19 Code, that such procedure would be inappropriate. The re20 quirements of this paragraph do not alter in any manner

21 the requirements otherwise applicable to the Secretary’s

22 action in promulgating an occupational health and safety

23 standard.’’.
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1 (e) REGULATORY FLEXIBILITY ANALYSIS.—Section

2 6 (29 U.S.C. 655), as amended by subsection (b), is

3 amended by adding at the end the following:

4 ‘‘(i) In promulgating any occupational safety and

5 health standard under subsection (b), the Secretary shall

6 perform a regulatory flexibility analysis described in sec7 tions 603 and 604 of title 5, United States Code.

8 ‘‘(j) In promulgating any occupational safety and

9 health standard under subsection (b), the Secretary shall

10 minimize the time, effort, and costs involved in the reten11 tion, reporting, notifying, or disclosure of information to

12 the Secretary, to third parties, or to the public to the ex13 tent consistent with the purpose of the standard. Compli14 ance with the requirement of this subsection may be in15 cluded in a review under subsection (f).’’.

16 SEC. 4. APPLICATION OF ACT.

17 (a) REPORTS.—Section 4(b)(3) (29 U.S.C.

18 653(b)(3)) is amended to read as follows:

19 ‘‘(3) The Secretary shall report on an annual basis

20 to the Congress on the number and nature of the com21 plaints the Secretary receives which the Secretary does not

22 respond to because of paragraph (1) of this subsection.

23 The Secretary shall include in such report the Secretary’s

24 recommendation for legislation to avoid unnecessary dupli-
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1 cation and to achieve coordination between this Act and

2 other Federal laws.’’.

3 (b) PURPOSES.—Section 4 (29 U.S.C. 653) is amend4 ed by adding at the end the following:

5 ‘‘(c) In order to carry out the purposes of this Act

6 to encourage employer and employees in their efforts to

7 reduce the number of occupational safety and health haz8 ards—

9 ‘‘(1) an employee participation committee or

10 plan—

11 ‘‘(A) in which employees participate,

12 ‘‘(B) which exists for the purpose, in whole

13 or in part, of dealing with employees concerning

14 the safety or health of working conditions or re15 lated matters, and

16 ‘‘(C) which does not have, claim, or seek

17 authority to negotiate or enter into collective

18 bargaining agreements with the employer or to

19 amend existing collective bargaining agreements

20 between the employer and any labor organiza21 tion,

22 shall not constitute a ‘labor organization’ for pur23 poses of section 8(a)(2) of the National Labor Rela24 tions Act or a representative for purposes of sections

25 1 and 2 of the Railway Labor Act, and
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1 ‘‘(2) records of safety and health inspections,

2 audits, or reviews conducted by an employer and not

3 required by this Act shall not be required to be dis4 closed to the Secretary except as may be necessary

5 to determine eligibility for an exemption from in6 spection under section 8A.’’.

7 SEC. 5. VARIANCES.

8 Section 6(d) (29 U.S.C. 655(d)) is amended by add9 ing at the end the following: ‘‘No citation shall be issued

10 for a violation of an occupational safety and health stand11 ard, which is the subject of an application for a variance

12 and which application has been pending before the Sec13 retary for at least 90 days, during the period the applica14 tion is pending before the Secretary.’’.

15 SEC. 6. INSPECTIONS.

16 (a) TRAINING AND AUTHORITY OF SECRETARY.—

17 Section 8 (29 U.S.C. 657) is amended by redesignating

18 subsection (g) as subsection (l) and by adding after sub19 section (f) the following:

20 ‘‘(g) Inspections conducted under this section shall

21 be conducted by at least one individual who has training

22 in and is knowledgeable of the industry or types of hazards

23 being inspected.

24 ‘‘(h) The Secretary shall enter into agreements with

25 other Federal agencies and with States to train inspection
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1 personnel of agencies which conduct inspections of employ2 ers to inspect places of employment to determine if em3 ployee fire protection is adequate and to identify recogniz4 able dangerous conditions and shall establish a system for

5 referral of fire hazards and such dangerous conditions to

6 the Secretary.

7 ‘‘(i)(1) Except as provided in paragraph (2), the Sec8 retary shall not conduct routine inspections of, or enforce

9 any standard, rule, regulation, or order under this Act

10 with respect to, any person who is engaged in a farming

11 operation which does not maintain a temporary labor

12 camp and employs 10 or fewer employees or any employer

13 of not more than 10 employees if such employer is in14 cluded within a category of employers having an occupa15 tional injury or a lost work day case rate (determined

16 under the Standard Industrial Classification Code for

17 which such data are published) which is less than the na18 tional average rate as most recently published by the Sec19 retary acting through the Bureau of Labor Statistics

20 under section 24.

21 ‘‘(2) Paragraph (1) shall, in the case of persons who

22 are not engaged in farming operations, not prevent the

23 Secretary from—

24 ‘‘(A) providing under this Act consultations,

25 technical assistance, and educational and training
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1 services and conducting under this Act surveys and

2 studies;

3 ‘‘(B) conducting inspections or investigations in

4 response to employee’s complaints, issuing citations

5 for violations of this Act found during such an in6 spection, and assessing a penalty for violations

7 which are not corrected within a reasonable abate8 ment period;

9 ‘‘(C) taking any action authorized by this Act

10 with respect to imminent dangers;

11 ‘‘(D) taking any action authorized by this Act

12 with respect to health standards;

13 ‘‘(E) taking any action authorized by this Act

14 with respect to a report of an employment accident

15 which is fatal to at least one employee or which re16 sults in hospitalization of at least 3 employees and

17 taking any action pursuant to an investigation of

18 such report; and

19 ‘‘(F) taking any action authorized by this Act

20 with respect to complaints of discrimination against

21 employees for exercising their rights under this

22 Act.’’.

23 (b) EMPLOYEE NOTICE.—Section 8(f)(1) (29 U.S.C.

24 657(f)(1)) is amended—
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1 (1) by striking out ‘‘he shall make’’ and insert2 ing in lieu thereof ‘‘the Secretary may make’’,

3 (2) by striking out ‘‘determines there’’ in the

4 third sentence and inserting in lieu thereof ‘‘deter5 mines that there’’, and

6 (3) by striking out ‘‘he shall notify’’ and insert7 ing in lieu thereof ‘‘or that the facts alleged in the

8 notification do not justify an exercise of the Sec9 retary’s inspection authority under subsection (a) for

10 any reason consistent with the standard used by the

11 Secretary to choose subjects for inspection under

12 that subsection, the Secretary shall notify’’.

13 SEC. 7. VOLUNTARY COMPLIANCE.

14 (a) PROGRAM.—The Occupational Safety and Health

15 Act of 1970 is amended by inserting after section 8 the

16 following:

17 ‘‘VOLUNTARY COMPLIANCE

18 ‘‘SEC. 8A. (a) The Secretary shall by regulation es19 tablish a program to encourage voluntary employer and

20 employee efforts to provide safe and healthful working

21 conditions.

22 ‘‘(b) In establishing a program under subsection (a),

23 the Secretary shall, in accordance with subsection (c), pro24 vide an exemption from all safety and health inspections

25 and investigations with respect to a place of employment
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1 maintained by an employer, except inspections and inves2 tigations conducted for the purpose of—

3 ‘‘(1) determining the cause of a workplace

4 accident which resulted in the death of one or more

5 employees or the hospitalization of 3 or more

6 employees,

7 ‘‘(2) responding to a request for an inspection

8 pursuant to subsection (f)(1), or

9 ‘‘(3) carrying out a special emphasis program

10 under section 12.

11 ‘‘(c) In order to qualify for the exemption provided

12 under subsection (b), an employer shall provide evidence

13 that—

14 ‘‘(1) the place of employment or conditions of

15 employment have, during the preceding year, been

16 reviewed or inspected under—

17 ‘‘(A) a consultation program provided by

18 recipients of grants under section 7(c)(1) or

19 23(g),

20 ‘‘(B) a certification or consultation pro21 gram provided by an insurance carrier or other

22 private business entity pursuant to a State pro23 gram, law, or regulation, or

24 ‘‘(C) a workplace consultation program

25 provided by an other person certified by the
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1 Secretary for purposes of providing such con2 sultations and the program under subparagraph

3 (A) or (B) or this subparagraph includes means

4 of assuring that serious hazards identified in

5 the consultation are corrected within an appro6 priate time, or

7 ‘‘(2) the place of employment has an exemplary

8 safety record and the employer maintains a safety

9 and health program for the workplace which in10 cludes—

11 ‘‘(A) procedures for assessing hazards to

12 the employer’s employees which are inherent to

13 the employer’s operations or business;

14 ‘‘(B) procedures for correcting or control15 ling such hazards in a timely manner based

16 upon the severity of the hazard; and

17 ‘‘(C) employee participation in the pro18 gram which participation includes at the least—

19 ‘‘(i) regular consultation between the

20 employer and non-supervisory employees

21 regarding safety and health issues;

22 ‘‘(ii) assurances that participating

23 non-supervisory employees have training or

24 expertise on safety and health issues con25 sistent with their responsibilities; and
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1 ‘‘(iii) opportunity for non-supervisory

2 employees to make recommendations re3 garding hazards in the workplace and to

4 receive responses or to implement improve5 ments in response to such recommenda6 tions.

7 ‘‘(d) The Secretary may require that an employer in

8 order to claim the exemption give certification to the Sec9 retary and notice to the employer’s employees of such eli10 gibility.’’.

11 (b) DEFINITION.—Section 3 (29 U.S.C. 652) is

12 amended by adding at the end the following:

13 ‘‘(15) The term ‘exemplary safety record’

14 means such record as the Secretary shall annually

15 determine for each industry. Such record shall in16 clude employers which have had, in the most recent

17 reporting period, no employee death caused by occu18 pational injury and fewer lost workdays due to occu19 pational injury and illness than the average for the

20 industry of which the employer is a part.’’.

21 SEC. 8. EMPLOYER DEFENSES

22 Section 9 (29 U.S.C. 658) is amended by adding at

23 the end the following:

24 ‘‘(d) No citation may be issued under subsection (a)

25 to an employer unless the employer knew or with the exer-
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1 cise of reasonable diligence would have known of the pres2 ence of the alleged violation. No citation shall be issued

3 under subsection (a) to an employer for an alleged viola4 tion of section 5, any standard, rule, or order promulgated

5 pursuant to section 6, any other regulation promulgated

6 under this Act, or any other occupational safety and

7 health standard if such employer demonstrates that—

8 ‘‘(1) employees of such employer have been pro9 vided with the proper training and equipment to pre10 vent such a violation;

11 ‘‘(2) work rules designed to prevent such a vio12 lation have been established and adequately commu13 nicated to employees by such employer and the em14 ployer has taken reasonable measures to discipline

15 employees when violations of such work rules have

16 been discovered;

17 ‘‘(3) the failure of employees to observe work

18 rules led to the violation; and

19 ‘‘(4) reasonable steps have been taken by such

20 employer to discover any such violation.

21 ‘‘(e) A citation issued under subsection (a) to an em22 ployer who violates the requirements of any standard, rule,

23 or order promulgated pursuant to section 6 or any other

24 regulation promulgated under this Act shall be vacated if

25 such employer demonstrates that employees of such em-
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1 ployer were protected by alternative methods equally or

2 more protective of the employee’s safety and health than

3 those required by such standard, rule, order, or regulation

4 in the factual circumstances underlying the citation.

5 ‘‘(f) Subsections (d) and (e) shall not be construed

6 to eliminate or modify other defenses which may exist to

7 any citation.’’.

8 SEC. 9. THE OCCUPATIONAL SAFETY AND HEALTH REVIEW

9 COMMISSION.

10 (a) SECTION 10.—Section 10(c) (29 U.S.C 659(c))

11 is amended—

12 (1) in the first sentence, by striking out ‘‘fifteen

13 working days’’ and inserting in lieu thereof ‘‘30

14 working days’’, and

15 (2) by striking out the second sentence and in16 serting in lieu thereof the following: ‘‘The Commis17 sion shall issue an order, based on de novo findings

18 of fact and de novo conclusions of law, affirming,

19 modifying, or vacating the Secretary’s citation or

20 proposed penalty or directing other appropriate re21 lief. Such order shall become final 30 days after it

22 is issued.’’.

23 (b) SECTION 11.—Section 11(a) (29 U.S.C 660(a) is

24 amended by inserting after ‘‘conclusive’’ at the end of the

25 sixth sentence the following: ‘‘and the Commission’s con-
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1 clusions with respect to questions of law shall be given

2 deference if reasonable’’.

3 SEC. 10. DISCRIMINATION.

4 Section 11(c) (29 U.S.C. 660(c)) is amended by strik5 ing out paragraphs (2) and (3) and inserting in lieu there6 of the following:

7 ‘‘(2) Any employee who believes that the employee

8 has been discharged or otherwise discriminated against by

9 any person in violation of paragraph (1) or who believes

10 that the employee has been discharged or discriminated

11 against because of an action taken by the employee’s em12 ployer in violation of section 28, may, within 60 days after

13 such violation occurs, file a complaint with the Secretary

14 alleging such discrimination. Upon receipt of such a com15 plaint the Secretary shall notify the person named in the

16 complaint and begin an investigation to determine if the

17 Secretary should, on behalf of such employee, request the

18 Commission to take action on the basis of such complaint.

19 The Secretary shall make such determination within 90

20 days of the filing of such complaint.

21 ‘‘(3) If within such 90 days, the Secretary does not

22 file a complaint on behalf of the complainant with the

23 Commission, such employee may file such complaint with

24 the Commission. If such a complaint is filed with the Com25 mission, the Commission shall provide opportunity for a
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1 hearing (in accordance with section 554 of title 5, United

2 States Code, but without regard to subsection (a)(3) of

3 such section), and issue an order, based upon findings of

4 fact and conclusions of law. In such an order, the Commis5 sion may require a person charged with committing a vio6 lation of paragraph (1) to take appropriate affirmative ac7 tion, including rehiring or reinstatement of the employee

8 to the employee’s former position with back pay and inter9 est. Upon completion of a proceeding on such order, the

10 Commission may award the prevailing party a reasonable

11 attorney’s fee. Final orders of the Commission may be ap12 pealed as provided in subsection (a).

13 ‘‘(4)(A) Anytime after a complaint has been filed with

14 the Secretary alleging a violation of paragraph (1), the

15 complaining employee, the person charged with commit16 ting the violation (referred to in this paragraph as the ‘re17 spondent’), or the Secretary have the right to request that

18 the complaint be referred to the Federal Mediation and

19 Conciliation Service (referred to in this paragraph as the

20 ‘Service’) for mediation of the dispute. In lieu of receiving

21 mediation services from the Service, the parties may upon

22 mutual agreement refer the complaint to a mediator other

23 than one provided by the Service.
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1 ‘‘(B) During mediation, the respondent and the com2 plaining party may be represented by legal counsel or

3 other representative of their choice.

4 ‘‘(C)(i) All contested proceedings shall be stayed dur5 ing the time for mediation and neither the Secretary or

6 the complaining party shall file a complaint pending com7 pletion of the mediation.

8 ‘‘(ii) The mediator shall have 60 days from the time

9 of the referral to mediate the dispute to complete the me10 diation. If the complaint has not been resolved within such

11 60-day period or such extension as may be agreed upon,

12 the mediation shall be deemed to be completed. The par13 ties may extend the mediation for an additional 60 days

14 by mutual agreement.

15 ‘‘(iii) The complaint shall be resolved through medi16 ation in a manner that is mutually agreeable to the par17 ties. Such resolution shall be binding upon the parties and

18 shall preclude resort to other legal proceedings except as

19 provided in subparagraph (E).

20 ‘‘(D)(i) Any agreement shall be kept confidential by

21 the parties to the mediation unless all parties to the medi22 ation agree otherwise in writing.

23 ‘‘(ii) All communications, oral or written, made in

24 connection with the mediation (including memoranda,
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1 work product, transcripts, notes, or other materials) shall

2 be kept confidential by the participants to the mediation.

3 ‘‘(iii) The material referred to in clause (ii) shall not

4 be subject to disclosure through discovery or compulsory

5 process and shall not be used as evidence in any investiga6 tory, arbitral, judicial, administrative, or other proceeding.

7 ‘‘(E) A party to an agreement made pursuant to me8 diation under this paragraph may bring an action to en9 force the agreement in any Federal or State court of com10 petent jurisdiction.

11 ‘‘(F) Except as provided in subparagraph (C)(iii),

12 nothing in this paragraph shall be interpreted to effect or

13 modify whatever rights and obligations the parties may

14 have under arbitration agreements or other form of alter15 native dispute resolution mechanisms.’’.

16 SEC. 11. ENFORCEMENT.

17 (a) SPECIAL CONDITIONS AND PRACTICES.—Section

18 13 (29 U.S.C. 662) is amended by striking out subsection

19 (c), by redesignating subsections (a) and (b) as sub20 sections (b) and (c), respectively, and by inserting before

21 subsection (b) (as so redesignated) the following:

22 ‘‘(a)(1) If the Secretary determines, on the basis of

23 an inspection or investigation under this section, that a

24 condition or practice in a place of employment is such that

25 an imminent danger to safety or health exists that could
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1 reasonably be expected to cause death or serious physical

2 harm or permanent impairment of the health or functional

3 capacity of employees if not corrected immediately or be4 fore the imminence of such danger can be eliminated

5 through the enforcement procedures otherwise provided by

6 this Act, the Secretary may so inform the employer and

7 provide notice to the affected employees and shall request

8 that the condition or practice be corrected immediately or

9 that employees be immediately removed from exposure to

10 such danger. The notice shall be removed by the Secretary

11 from the place of employment not later than 72 hours

12 after the notice was first posted unless a court in an action

13 brought under subsection (c) requires that the notice be

14 maintained. The Secretary shall not prevent the continued

15 activity of employees whose presence is necessary to avoid,

16 correct, or remove such imminent danger or to maintain

17 the capacity of a continuous process operation to resume

18 normal operations without a cessation of operations or

19 where cessation of operations is necessary, to permit such

20 to be accomplished in a safe and orderly way.

21 ‘‘(2) No person shall discharge or in any manner dis22 criminate against any employee because such employee

23 has refused to perform a duty that has been identified as

24 the source of an imminent danger by a notice posted pur25 suant to paragraph (1).’’.
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1 (b) MANDATORY SPECIAL EMPHASIS.—Section 8 (29

2 U.S.C. 657), as amended by section 6, is amended by add3 ing at the end the following:

4 ‘‘(j)(1) The Secretary shall establish and carry out

5 a special emphasis program for identifying and correcting

6 existing or newly recognized hazards in selected industries

7 and operations and high hazard industries and operations.

8 ‘‘(2) Each special emphasis program under para9 graph (1) shall consist of a planned and coordinated ef10 fort, including outreach, education and training programs,

11 and inspections. Before beginning any such program, the

12 Secretary shall meet and discuss with representatives of

13 employers and employees in the industries affected by

14 such program the intended goals and benefits of such pro15 gram, the number of inspections under such program, and

16 the nature of other activities planned. To the extent prac17 ticable, the Secretary shall coordinate efforts with such

18 representatives. Each such program shall have a date of

19 termination and shall include methods of evaluating the

20 effectiveness of the program in reducing illness and injury

21 in the targeted industries or operations.’’.

22 (c) INVESTIGATIONS OF DEATHS AND SERIOUS INCI23 DENTS.—Section 8 (29 U.S.C. 657), as amended by sub24 section (b), is amended by adding at the end the following:
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1 ‘‘(k)(1) The Secretary shall investigate any work-re2 lated death or serious incident.

3 ‘‘(2) If a death or serious incident occurs in a place

4 of employment covered by this Act, the employer shall no5 tify the Secretary of the death or serious incident.

6 ‘‘(3) As used in this subsection, the term ‘serious in7 cident’ means an incident that results in the hospitaliza8 tion of 3 or more employees. The Secretary shall by regu9 lation define ‘hospitalization’.’’.

10 (d) ENFORCEMENT AGAINST STATE AND LOCAL

11 GOVERNMENTS.—During the 3 year period beginning on

12 the date of the enactment of this Act the Secretary shall

13 not undertake any enforcement action under section 10

14 of the Occupational Safety and Health Act against a State

15 or political subdivision of a State. During such 3-year pe16 riod the Secretary shall work with each of the States which

17 does not have a State plan in effect under section 18 to

18 assist the States in the adoption of such a plan, including

19 a plan which applies only to the government of the State

20 or its political subdivisions. This subsection shall not af21 fect the Secretary’s review of State programs under sec22 tion 18.

23 SEC. 12. PENALTIES.

24 (a) IN GENERAL.—Section 17 (29 U.S.C. 666) is

25 amended by striking out subsections (a), (b), (c), (j), and
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1 (k), by redesignating subsections (d), (e), (f), (g), (h), (i),

2 and (l) as subsections (b), (c), (d), (e), (f), (g), and (h),

3 and by inserting after ‘‘17.’’ the following:

4 ‘‘(a)(1) Any employer who violates the requirements

5 of section 5, any standard, rule, or order promulgated pur6 suant to section 6, or any other regulation promulgated

7 under this Act may be assessed a civil penalty of not more

8 than $7,000. The Commission shall have authority to as9 sess all civil penalties provided in this section, giving due

10 consideration to the appropriateness of the penalty with

11 respect to—

12 ‘‘(A) the size of the employer,

13 ‘‘(B) the number of employees exposed to the

14 violation,

15 ‘‘(C) the likely severity of any injuries directly

16 resulting from such violation,

17 ‘‘(D) the probability that the violation could re18 sult in injury or illness,

19 ‘‘(E) the employer’s good faith in correcting the

20 violation after it has been identified,

21 ‘‘(F) the extent to which employee misconduct

22 was responsible for the violation,

23 ‘‘(G) the effect of the penalty on the employer’s

24 ability to stay in business.
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1 ‘‘(2)(A) In assessing under paragraph (1) a civil pen2 alty against a State or political subdivision, the Commis3 sion may reduce the civil penalty by the amount spent by

4 the State or political subdivision to abate the violation

5 with which the State or political subdivision is charged.

6 ‘‘(B) A penalty assessed under paragraph (1) shall

7 be reduced by 25 percent in any case in which the em8 ployer—

9 ‘‘(i) maintains a written safety and health pro10 gram for the worksite at which the violation for

11 which the penalty was assessed took place, or

12 ‘‘(ii) shows that the worksite at which the viola13 tion for which the penalty was assessed took place

14 has an exemplary safety record.

15 If the employer maintains a program described in clause

16 (i) and has the record described in clause (ii), the penalty

17 shall be reduced by 50 percent.

18 ‘‘(C) No penalty shall be assessed against an em19 ployer for a violation other than a violation previously

20 cited by the Secretary or a violation which creates an im21 minent danger or has caused death or a willful violation

22 which has caused serious injury to an employee if the

23 worksite at which the violation occurred has been reviewed

24 or inspected under a program described in section
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1 8A(c)(1) during the one year period before the date of the

2 citation for such violation.’’.

3 (b) SPECIAL ASSESSMENTS.—Section 17 (29 U.S.C.

4 666), as amended by subsection (a), is amended by adding

5 at the end the following:

6 ‘‘(i) The Secretary shall, by regulation, prescribe pro7 cedures for determining that conditions surrounding a vio8 lation warrant a special assessment. Such regulation shall

9 provide that all findings shall be in narrative form and

10 provide for individual review of violations for special as11 sessment in the following circumstances:

12 ‘‘(1) Violations causing fatalities.

13 ‘‘(2) An excessive history of serious injuries to

14 employees or a pattern of violations of this Act

15 which cause or are likely to cause death or serious

16 physical injury to employees.

17 When the Secretary determines that a special assessment

18 is appropriate, the Secretary may apply an appropriate

19 multiplier, based on the factors listed in subsection (a),

20 of not greater than 10 to the penalty determined under

21 subsection (a). In addition to any fines assessed with re22 spect to the violations described in paragraphs (1) and (2),

23 the Secretary may require the employer involved to estab24 lish a comprehensive safety and health program for the

25 worksite at which the violations occurred and provide reg-
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1 ular certification to the Secretary that such employer is

2 in compliance with such program.’’.

3 (c) PENALTIES.—

4 (1) CITATIONS.—Section 17 (29 U.S.C. 666),

5 as amended by subsection (b), is amended by adding

6 at the end the following:

7 ‘‘(j) Nothing in this Act shall be construed as requir8 ing the Secretary to issue a citation for violations of this

9 Act if the Secretary believes that the public interest will

10 be adequately served by a suitable written notice or warn11 ing.’’.

12 (2) KNOWING VIOLATION.—Subsection (e) of

13 section 17 (29 U.S.C. 666) is amended to read as

14 follows:

15 ‘‘(e) If any employer who knowingly violates any

16 standard, rule, or order promulgated pursuant to section

17 6 or any regulation prescribed pursuant to this Act and

18 if such violation caused death to any employee, such em19 ployer, if such employer knew such violation would place

20 an employee in imminent danger of death and the employ21 er’s conduct in the circumstances manifests an extreme

22 indifference or reckless disregard of human life, shall upon

23 conviction be punished by a fine in accordance with section

24 3571 of title 18, United States Code, or by imprisonment

25 of not more than 3 years. If the conviction is for a viola-
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1 tion committed after a first conviction under this sub2 section of such person, imprisonment shall be for not more

3 than 6 years.’’.

4 (d) VICTIM’S RIGHTS.—Section 10 (29 U.S.C. 659)

5 is amended by adding at the end the following:

6 ‘‘(d)(1) The Secretary shall provide any individual

7 who is a victim of a violation of this Act with—

8 ‘‘(A) access to information respecting any inves9 tigation of the Secretary or hearing by the Commis10 sion of such violation, to citations issued for such

11 violation, to penalties imposed under this section for

12 such violation, and to settlements made respecting

13 such violation, and

14 ‘‘(B) an opportunity to meet with the Secretary

15 or a representative of the Secretary respecting such

16 violation.

17 ‘‘(2) For purposes of paragraph (1), the term ‘victim’

18 means—

19 ‘‘(A) an employee who has sustained a work-re20 lated injury or illness which is the subject of an in21 spection or investigation conducted under section 8,

22 or

23 ‘‘(B) a family member of an employee described

24 in subparagraph (A) who is killed as a result of such

25 injury or illness.’’.
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1 SEC. 13. STATE PROGRAMS.

2 Section 18(c) (29 U.S.C. 667(c)) is amended—

3 (1) in paragraph (2), by striking out ‘‘and

4 which’’ and inserting in lieu thereof ‘‘which’’ and by

5 inserting after the comma at the end the following:

6 ‘‘and which standards when applicable to the label7 ing, content, and hazard information for such prod8 ucts are identical to any requirement under a stand9 ard promulgated under section 6,’’,

10 (2) in paragraph (4), by inserting before the

11 comma the following: ‘‘at least as effective as en12 forcement by the Secretary’’, and

13 (3) by adding after and below paragraph (8)

14 the following: ‘‘The Secretary may waive any of the

15 requirements of this subsection (other than the re16 quirements of paragraphs (2) and (6)) upon a re17 quest of a State seeking approval of a plan or an

18 amendment to an approved plan. Such a waiver shall

19 not extend for more than 3 years but may be re20 newed if the Secretary determines that the rate of

21 occupational fatalaties, injuries, and illnesses has

22 declined in such State during the period of the

23 waiver.’’.

24 SEC. 14. NIOSH.

25 Section 22 (29 U.S.C. 671) is repealed and the func26 tions and authorities provided to the National Institute
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1 of Occupational Safety and Health under section 22 are

2 transferred to the Secretary of Labor. The responsibilities

3 and authorities of the Secretary of Health and Human

4 Services under sections 20, 21, and 22 are transferred to

5 the Secretary of Labor. The Secretary of Labor shall take

6 such actions as are necessary to avoid duplication of pro7 grams and to maximize training, education, and research

8 under the Occupational Safety and Health Act of 1970.

9 SEC. 15. PREVENTION OF ALCOHOL AND SUBSTANCE

10 ABUSE.

11 Sections 28 through 31 are repealed, sections 32, 33,

12 and 34 are redesignated as sections 29, 30, and 31, re13 spectively, and the following is inserted after section 27

14 (29 U.S.C. 676):

15 ‘‘ALCOHOL AND SUBSTANCE ABUSE TESTING

16 ‘‘SEC. 28. (a) Whenever there exists the reasonable

17 probability that the safety or health of any employee could

18 be endangered because of the use of alcohol or a controlled

19 substance in the workplace, the employer of such employee

20 may establish and implement an alcohol and substance

21 abuse testing program in accordance with subsection (b).

22 ‘‘(b) The Secretary shall establish standards under

23 section 6 for substance abuse and alcohol testing programs

24 established under subsection (a) as follows:

25 ‘‘(1) The substance abuse testing program shall

26 conform, to the maximum extent practicable, to sub-
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1 part B of the mandatory guidelines for Federal

2 workplace drug testing programs published on April

3 11, 1988, by the Secretary of Health and Human

4 Services at 53 Federal Register 11979 and any

5 amendments adopted to such guidelines.

6 ‘‘(2) The alcohol testing program shall take the

7 form of alcohol breath analysis and shall conform, to

8 the maximum extent practicable, to any guidelines

9 developed by the Secretary of Transportation for al10 cohol testing of mass transit employees under the

11 Department of Transportation and Related Agencies

12 Appropriations Act, 1992.

13 ‘‘(c) This section shall not be construed to prohibit

14 an employer from requiring an employee to submit to and

15 pass an alcohol or substance abuse test before employment

16 by the employer or—

17 ‘‘(1) on a for cause basis or where the employer

18 has reasonable suspicion to believe that such em19 ployee is using or is under the influence of alcohol

20 or a controlled substance,

21 ‘‘(2) where such test is administered as part of

22 a scheduled medical examination,

23 ‘‘(3) in the case of an accident or incident in24 volving the actual or potential loss of human life,

25 bodily injury, or property damage,
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1 ‘‘(4) during and for a reasonable period of time

2 (not to exceed 5 years) after the conclusion of an al3 cohol or substance abuse treatment program, or

4 ‘‘(5) on a random selection basis in work units,

5 locations, or facilities where alcohol and substance

6 abuse has been identified as a problem or as part of

7 a universal testing program.’’.

8 SEC. 16. SMALL BUSINESS ASSISTANCE AND TRAINING.

9 Section 16 (29 U.S.C. 655) is amended by inserting

10 ‘‘(a)’’ after ‘‘16.’’ and by adding at the end the following:

11 ‘‘(b) The Secretary shall publish and make available

12 to employers a model injury prevention program which if

13 completed by the employer shall be deemed to meet the

14 requirement for an exemption under section 8A or a re15 duction in penalty under section 17(a)(2)(B).

16 ‘‘(c) The Secretary shall establish and implement a

17 program to provide technical assistance and consultative

18 services for employers and employees, either directly or by

19 grant or contract, concerning worksite safety and health

20 and compliance with this Act. Such assistance shall be

21 targeted at small employers and the most hazardous

22 industries.

23 ‘‘(d) This subsection authorizes the consultative serv24 ices to employers provided under cooperative agreements

25 between the States and the Occupational Safety and
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1 Health Administration and described in part 1908 of title

2 39 of the Code of Federal Regulations.

3 ‘‘(e) Not less than one-fourth of the annual appro4 priation made to the Secretary to carry out this Act shall

5 be expended for the purposes described in this section.’’.

6 SEC. 17. EXEMPLARY PROGRAMS.

7 (a) ESTABLISHMENT.—The Secretary of Labor shall

8 establish an award which shall periodically be made to

9 companies and other organizations which have imple10 mented particularly effective approaches to addressing oc11 cupational safety and health in the workplace, including

12 those which provide for effective employee involvement in

13 improving safety and health, and which are as a con14 sequence deserving of special recognition.

15 (b) USE OF AWARD.—A company or organization to

16 which an award is made under subsection (a) and which

17 agrees to help other American companies or organizations

18 improve their occupational safety and health may publicize

19 its receipt of such award and use the award in its advertis20 ing, but it shall be ineligible to receive another such award

21 in the same category for a period of 5 years.

22 (c) CATEGORIES IN WHICH AWARD MAY BE

23 GIVEN.—

24 (1) CATEGORIES.—Subject to paragraph (2),

25 separate awards shall be made to qualifying organi-
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1 zations and companies in each of the following cat2 egories—

3 (A) Small businesses.

4 (B) Other companies or their subsidiaries.

5 (C) Companies which primarily perform

6 construction work.

7 (2) CHANGE IN LIST.—The Secretary of Labor

8 may at any time expand, subdivide, or otherwise

9 modify the list of categories within which awards

10 may be made as initially in effect under paragraph

11 (1) and may establish separate awards for other or12 ganizations and companies including units of govern13 ment, upon a determination that the objectives of

14 this section would be better served thereby; except

15 that any such expansion, subdivision, modification,

16 or establishment shall not be effective unless and

17 until the Secretary of Labor has submitted a de18 tailed description thereof to the Congress and a pe19 riod of 30 days has elapsed since that submission.

20 (3) Not more than two awards may be made

21 within any subcategory in any year (and no award

22 shall be made within any category or subcategory if

23 there are no qualifying enterprises in that category

24 or subcategory).
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1 (d) CRITERIA FOR QUALIFICATION.—An organization

2 or company may qualify for an award under subsection

3 (a) only if it—

4 (1) applies to the Secretary of Labor in writing,

5 for the award,

6 (2) permits a rigorous evaluation of its occupa7 tional safety and health operations, and

8 (3) meets such requirements and specifications

9 as the Secretary of Labor determines to be appro10 priate to achieve the objectives of this section.

11 In applying paragraph (3) with respect to any organiza12 tion or company, the Secretary of Labor shall rely upon

13 an intensive evaluation of the occupational safety and

14 health operation. The examination should encompass all

15 aspects of the organization’s or company’s current occupa16 tional safety and health practice. The award shall be given

17 only to organizations and companies which have made out18 standing improvements in their occupational safety and

19 health practices and which demonstrate effective occupa20 tional safety and health practices through the training and

21 involvement of all levels of personnel.

22 (e) INFORMATION TRANSFER PROGRAM.—The Sec23 retary of Labor shall ensure that all program participants

24 receive the complete results of their audits as well as de25 tailed explanations of all suggestions for improvements.
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1 The Director shall also provide information about the

2 awards and the successful quality improvement strategies

3 and programs of the award-winning participants to all

4 participants and other appropriate groups.

5 (f) FUNDING.—The Secretary of Labor is authorized

6 to seek and accept gifts from public and private sources

7 to carry out the program under this section. If additional

8 sums are needed to cover the full cost of the program,

9 the Secretary of Labor shall impose fees upon the organi10 zations and companies applying for the award in amounts

11 sufficient to provide such additional sums.

12 (g) REPORT.—The Secretary of Labor shall prepare

13 and submit to the President and the Congress, within 3

14 years after the date of the enactment of this section, a

15 report on the progress, findings, and conclusions of activi16 ties conducted pursuant to this section along with rec17 ommendations for possible modifications thereof.

18 SEC. 18. ECONOMIC IMPACT ANALYSIS.

19 The Secretary of Labor shall conduct a continuing

20 comprehensive analysis of the costs and benefits of each

21 standard in effect under section 6 of the Occupational

22 Safety and Health Act of 1970. The Secretary shall first

23 report the results of such analysis to Congress upon the

24 expiration of 2 years after the date of the enactment of

25 this Act and shall report every 2 years thereafter.
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