Calendar No. 300

105TH CONGRESS

2D SESSION S. 1237

[Report No. 105–159]

A BILL

To amend the Occupational Safety and Health Act

of working environments, and for other purposes.of 1970 to further improve the safety and health

JANUARY 27, 1998

Reported with an amendment
II

Calendar No. 300

105TH CONGRESS

2D SESSION S. 1237

[Report No. 105–159]

To amend the Occupational Safety and Health Act of 1970 to further improve

the safety and health of working environments, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 30, 1997

Mr. ENZI (for himself, Mr. GREGG, Mr. FRIST, Mr. JEFFORDS, Mr. COATS,

Mr. DEWINE, Mr. HUTCHINSON, Mr. BURNS, Mr. HAGEL, Ms. COLLINS,

Mr. MCCONNELL, Mr. WARNER, Mr. ALLARD, Mr. CRAIG, Mr. ROBERTS,

Mr. SESSIONS, Mr. THOMAS, Mr. SMITH of Oregon, Mr. BROWNBACK,

Mr. NICKLES, Mr. GRASSLEY, Mr. COCHRAN, and Mr. LOTT) introduced

the following bill; which was read twice and referred to the Committee

on Labor and Human Resources

JANUARY 27, 1998

Reported by Mr. JEFFORDS, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To amend the Occupational Safety and Health Act of 1970

to further improve the safety and health of working

environments, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

•S 1237 RS

1 SECTION 1. SHORT TITLE; REFERENCE.

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

3 ‘‘Safety Advancement for Employees Act of 1997’’ or the

4 ‘‘SAFE Act’’.

5 (b) REFERENCE.—Whenever in this Act an amend6 ment or repeal is expressed in terms of an amendment

7 to, or repeal of, a section or other provision, the reference

8 shall be considered to be made to a section or other provi9 sion of the Occupational Safety and Health Act of 1970

10 (29 U.S.C. 651 et seq.).

11 SEC. 2. PURPOSE.

12 Section 2(b) (29 U.S.C. 651(b)) is amended—

13 (1) in paragraph (13), by striking the period

14 and inserting ‘‘; and’’; and

15 (2) by adding at the end the following:

16 ‘‘(14) by increasing the joint cooperation of em17 ployers, employees, and the Secretary of Labor in

18 the effort to ensure safe and healthful working con19 ditions for employees.’’.

20 SEC. 3. EMPLOYEE AND EMPLOYER PARTICIPATION PRO21 GRAMS.

22 Section 4 (29 U.S.C. 653) is amended by adding at

23 the end the following:

24 ‘‘(c)(1) In order to further carry out the purpose of

25 this Act to encourage employers and employees in their

26 efforts to reduce occupational safety and health hazards,
3

•S 1237 RS

1 employers may establish employer and employee participa2 tion programs which exist for the sole purpose of address3 ing safe and healthful working conditions.

4 ‘‘(2) An entity created under a program described in

5 paragraph (1) shall not constitute a labor organization for

6 purposes of section 8(a)(2) of the National Labor Rela7 tions Act (29 U.S.C. 158(a)(2)) or a representative for

8 purposes of sections 1 and 2 of the Railway Labor Act

9 (45 U.S.C. 151 and 151a).

10 ‘‘(3) Nothing in this subsection shall be construed to

11 affect employer obligations under section 8(a)(5) of the

12 National Labor Relations Act (29 U.S.C. 158(a)(5)) to

13 deal with a certified or recognized employee representative

14 with respect to health and safety matters to the extent

15 otherwise required by law.’’.

16 SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COMMIT17 TEE.

18 Section 7 (29 U.S.C. 656) is amended by adding at

19 the end the following:

20 ‘‘(d)(1) Not later than 6 months after the date of

21 enactment of this subsection, the Secretary shall establish

22 an advisory committee (pursuant to the Federal Advisory

23 Committee Act (5 U.S.C. App.)) to carry out the duties

24 described in paragraph (3).

25 ‘‘(2) The advisory committee shall be composed of—
4

•S 1237 RS

1 ‘‘(A) 3 members who are employees;

2 ‘‘(B) 3 members who are employers;

3 ‘‘(C) 2 members who are members of the gen4 eral public; and

5 ‘‘(D) 1 member who is a State official from a

6 State plan State.

7 Each member of the advisory committee shall have exper8 tise in workplace safety and health as demonstrated by

9 the educational background of the member.

10 ‘‘(3) The advisory committee shall advise and make

11 recommendations to the Secretary with respect to the es12 tablishment and implementation of a consultation services

13 program under section 8A.’’.

14 SEC. 5. THIRD PARTY CONSULTATION SERVICES PROGRAM.

15 (a) PROGRAM.—The Act (29 U.S.C. 651 et seq.) is

16 amended by inserting after section 8 the following:

17 ‘‘SEC. 8A. THIRD PARTY CONSULTATION SERVICES PRO18 GRAM.

19 ‘‘(a) ESTABLISHMENT OF PROGRAM.—

20 ‘‘(1) IN GENERAL.—Not later than 12 months

21 after the date of enactment of this section, the Sec22 retary shall establish and implement, by regulation,

23 a program that qualifies individuals to provide con24 sultation services to employers to assist employers in
5

•S 1237 RS

1 the identification and correction of safety and health

2 hazards in the workplaces of employers.

3 ‘‘(2) ELIGIBILITY.—Each of the following indi4 viduals shall be eligible to be qualified under the

5 program:

6 ‘‘(A) An individual licensed by a State au7 thority as a physician, industrial hygienist, pro8 fessional engineer, safety engineer, safety pro9 fessional, or occupational nurse.

10 ‘‘(B) An individual who has been employed

11 as an inspector for a State plan State or as a

12 Federal occupational safety and health inspec13 tor for not less than a 5-year period.

14 ‘‘(C) An individual qualified in an occupa15 tional health or safety field by an organization

16 whose program has been accredited by a nation17 ally recognized private accreditation organiza18 tion or by the Secretary.

19 ‘‘(D) Other individuals determined to be

20 qualified by the Secretary.

21 ‘‘(3) GEOGRAPHICAL SCOPE OF CONSULTATION

22 SERVICES.—An individual qualified under the pro23 gram may provide consultation services in any State.

24 ‘‘(b) SAFETY AND HEALTH REGISTRY.—The Sec25 retary shall develop and maintain a registry that includes
6

•S 1237 RS

1 all individuals that are qualified under the program to pro2 vide the consultation services described in subsection (a)

3 and shall publish and make such registry readily available

4 to the general public.

5 ‘‘(c) DISCIPLINARY ACTIONS.—

6 ‘‘(1) IN GENERAL.—The Secretary may revoke

7 the status of an individual qualified under subsection

8 (a) if the Secretary determines that the individual—

9 ‘‘(A) has failed to meet the requirements

10 of the program; or

11 ‘‘(B) has committed malfeasance, gross

12 negligence, or fraud in connection with any con13 sultation services provided by the qualified indi14 vidual.

15 ‘‘(d) CONSULTATION SERVICES.—

16 ‘‘(1) SCOPE OF CONSULTATION SERVICES.—

17 ‘‘(A) IN GENERAL.—The consultation serv18 ices described in subsection (a), and provided

19 by an individual qualified under the program,

20 shall include an evaluation of the workplace of

21 an employer to determine if the employer is in

22 compliance with the requirements of this Act,

23 including any regulations promulgated pursuant

24 to this Act.
7

•S 1237 RS

1 ‘‘(B) NON-FIXED WORK SITES.—With re2 spect to the employees of an employer who do

3 not work at a fixed site, the consultation serv4 ices described in subsection (a), and provided

5 by an individual qualified under the program,

6 shall include an evaluation of the safety and

7 health program of the employer to determine if

8 the employer is in compliance with the require9 ments of this Act, including any regulations

10 promulgated under this Act.

11 ‘‘(2) CONSULTATION REPORT.—Not later than

12 10 business days after an individual qualified under

13 the program provides the consultation services de14 scribed in subsection (a) to an employer, the individ15 ual shall prepare and submit a written report to the

16 employer that includes an identification of any viola17 tions of this Act and requirements with respect to

18 corrective measures the employer needs to carry out

19 in order for the workplace of the employer to be in

20 compliance with the requirements of this Act.

21 ‘‘(3) REINSPECTION.—Not later than 30 days

22 after an individual qualified under the program sub23 mits a report to an employer under paragraph (2),

24 or on a date agreed on by the individual and the em25 ployer, the individual shall reinspect the workplace
8

•S 1237 RS

1 of the employer to verify that any occupational safe2 ty or health violations identified in the report have

3 been corrected and the workplace of the employer is

4 in compliance with this Act. If, after such reinspec5 tion, the individual determines that the workplace is

6 in compliance with the requirements of this Act, the

7 individual shall provide the employer a declaration

8 of compliance.

9 ‘‘(4) GUIDELINES.—The Secretary, in consulta10 tion with an advisory committee established in sec11 tion 7(d), shall develop model guidelines for use in

12 evaluating a workplace under paragraph (1).

13 ‘‘(e) ACCESS TO RECORDS.—Any records relating to

14 consultation services (as described in subsection (a)) pro15 vided by an individual qualified under the program, or

16 records, reports, or other information prepared in connec17 tion with safety and health inspections, audits, or reviews

18 conducted by or for an employer and not required under

19 this Act, shall not be admissible in a court of law or ad20 ministrative proceeding against the employer except that

21 such records may be used as evidence for purposes of a

22 disciplinary action under subsection (c).

23 ‘‘(f) EXEMPTION.—

24 ‘‘(1) IN GENERAL.—If an employer enters into

25 a contract with an individual qualified under the
9

•S 1237 RS

1 program, to provide consultation services described

2 in subsection (a), and receives a declaration of com3 pliance under subsection (d)(3), the employer shall

4 be exempt from the assessment of any civil penalty

5 under section 17 for a period of 2 years after the

6 date the employer receives the declaration.

7 ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not

8 apply—

9 ‘‘(A) if the employer involved has not made

10 a good faith effort to remain in compliance as

11 required under the declaration of compliance; or

12 ‘‘(B) to the extent that there has been a

13 fundamental change in the hazards of the work14 place.

15 ‘‘(g) DEFINITION.—In this section, the term ‘pro16 gram’ means the program established by the Secretary

17 under subsection (a).’’.

18 SEC. 6. INDEPENDENT SCIENTIFIC PEER REVIEW.

19 Section 6(b) (29 U.S.C. 655(b)(1)) is amended—

20 (1) by striking: ‘‘(4) Within’’ and inserting:

21 ‘‘(4)(A) Within’’; and

22 (2) by adding at the end the following:

23 ‘‘(B)(i) Prior to issuing a final standard under this

24 paragraph, the Secretary shall submit the draft final

25 standard and a copy of the administrative record to the
10

•S 1237 RS

1 National Academy of Sciences for review in accordance

2 with clause (ii).

3 ‘‘(ii)(I) The National Academy of Sciences shall ap4 point an independent Scientific Review Committee.

5 ‘‘(II) The Scientific Review Committee shall conduct

6 an independent review of the draft final standard and the

7 scientific literature and make written recommendations

8 with respect to the draft final standard to the Secretary,

9 including recommendations relating to the appropriateness

10 and adequacy of the scientific data, scientific methodology,

11 and scientific conclusions, adopted by the Secretary.

12 ‘‘(III) If the Secretary decides to modify the draft

13 final standard in response to the recommendations pro14 vided by the Scientific Review Committee, the Scientific

15 Review Committee shall be given an opportunity to review

16 and comment on the modifications before the final stand17 ard is issued.

18 ‘‘(IV) The recommendations of the Scientific Review

19 Committee shall be published with the final standard in

20 the Federal Register.’’.
11

•S 1237 RS

1 SEC. 7. CONTINUING EDUCATION AND PROFESSIONAL CER2 TIFICATION FOR CERTAIN OCCUPATIONAL

3 SAFETY AND HEALTH ADMINISTRATION PER4 SONNEL.

5 Section 8 (29 U.S.C. 657) is amended by adding at

6 the end the following:

7 ‘‘(h) Any Federal employee responsible for enforcing

8 this Act shall (not later than 2 years after the date of

9 enactment of this subsection or 2 years after the initial

10 employment of the employee) meet the eligibility require11 ments prescribed under subsection (a)(2) of section 8A.

12 ‘‘(i) The Secretary shall ensure that any Federal em13 ployee responsible for enforcing this Act who carries out

14 inspections or investigations under this section, receive

15 professional education and training at least every 5 years

16 as prescribed by the Secretary.’’.

17 SEC. 8. INSPECTION PROCEDURES AND QUOTAS.

18 (a) IN GENERAL.—Section 8(f) (29 U.S.C. 657(f))

19 is amended—

20 (1) in paragraph (1)—

21 (A) in the second sentence, by inserting be22 fore ‘‘and a copy’’ the following: ‘‘and shall

23 state whether the alleged violation has been

24 brought to the attention of the employer and if

25 so, whether the employer has refused to take

26 any action to correct the alleged violation,’’;
12

•S 1237 RS

1 (B) by inserting after the third sentence

2 the following: ‘‘The inspection shall be con3 ducted for the limited purpose of determining

4 whether the violation exists. During such an in5 spection, the Secretary may take appropriate

6 actions with respect to health and safety viola7 tions that are not within the scope of the in8 spection and that are observed by the Secretary

9 or an authorized representative of the Secretary

10 during the inspection.’’; and

11 (C) by inserting before the last period the

12 following: ‘‘, and, upon request by the employee

13 or employee representative, shall provide a writ14 ten statement of the reasons for the determina15 tion of the Secretary’’; and

16 (2) by adding at the end thereof the following:

17 ‘‘(3) The Secretary or an authorized representative

18 of the Secretary may, as a method of investigating an al19 leged violation or danger under this subsection, attempt,

20 if feasible, to contact an employer by telephone, facsimile,

21 or other appropriate methods to determine whether—

22 ‘‘(A) the employer has taken corrective actions

23 with respect to the alleged violation or danger; or

24 ‘‘(B) there are reasonable grounds to believe

25 that a hazard exists.
13

•S 1237 RS

1 ‘‘(4) The Secretary is not required to conduct an in2 spection under this subsection if the Secretary determines

3 that a request for an inspection was made for reasons

4 other than the safety and health of the employees of an

5 employer or that the employees of an employer are not

6 at risk.’’.

7 (b) QUOTAS.—Section 9 (29 U.S.C. 658) is amended

8 by adding at the end the following:

9 ‘‘(d) The Secretary shall not establish for any em10 ployee within the Occupational Safety and Health Admin11 istration (including any regional director, area director,

12 supervisor, or inspector) a quota with respect to the num13 ber of inspections conducted, the number of citations

14 issued, or the amount of penalties collected, in accordance

15 with this Act.

16 ‘‘(e) Not later than 12 months after the date of en17 actment of this subsection and annually thereafter, the

18 Secretary shall report on the number of employers that

19 are inspected under this Act and determined to be in com20 pliance with the requirements prescribed under this Act.’’.

21 SEC. 9. PERSONAL RESPONSIBILITIES.

22 (a) THE USE OF ALTERNATIVE METHODS AS AN AF23 FIRMATIVE DEFENSE.—Section 9 (29 U.S.C. 658), as

24 amended by section 8, is further amended by adding at

25 the end the following:
14

•S 1237 RS

1 ‘‘(f)(1) No citation may be issued under subsection

2 (a) to an employer unless the employer knew, or with the

3 exercise of reasonable diligence, would have known, of the

4 presence of an alleged violation.

5 ‘‘(2) No citation shall be issued under subsection (a)

6 to an employer for an alleged violation of section 5, any

7 standard, rule, or order promulgated pursuant to section

8 6, any other regulation promulgated under this Act, or

9 any other occupational safety and health standard, if the

10 employer demonstrates that—

11 ‘‘(A) the employees of the employer have been

12 provided with the proper training and equipment to

13 prevent such a violation;

14 ‘‘(B) work rules designed to prevent such a vio15 lation have been established and adequately commu16 nicated to the employees by the employer and the

17 employer has taken reasonable measures to dis18 cipline employees when violations of the work rules

19 have been discovered;

20 ‘‘(C) the failure of employees to observe work

21 rules led to the violation; and

22 ‘‘(D) reasonable measures have been taken by

23 the employer to discover any such violation.

24 ‘‘(g) A citation issued under subsection (a) to an em25 ployer who violates section 5, any standard, rule, or order
15

•S 1237 RS

1 promulgated pursuant to section 6, or any other regulation

2 promulgated under this Act shall be vacated if such em3 ployer demonstrates that the employees of such employer

4 were protected by alternative methods that are equally or

5 more protective of the safety and health of the employees

6 than the methods required by such standard, rule, order,

7 or regulation in the factual circumstances underlying the

8 citation.

9 ‘‘(h) Subsections (f) and (g) shall not be construed

10 to eliminate or modify other defenses that may exist to

11 any citation.’’.

12 (b) EMPLOYEE RESPONSIBILITY.—The Occupational

13 Safety and Health Act of 1970 (29 U.S.C. 651 et seq.)

14 is amended by inserting after section 10 the following:

15 ‘‘SEC. 10A. EMPLOYEE RESPONSIBILITY.

16 ‘‘(a) IN GENERAL.—Notwithstanding any other pro17 vision of this Act, an employee who, with respect to per18 sonal protective equipment, willfully violates any require19 ment of section 5 or any standard, rule, or order promul20 gated pursuant to section 6, or any regulation prescribed

21 pursuant to this Act, may be assessed a civil penalty, as

22 determined by the Secretary, for each violation.

23 ‘‘(b) CITATIONS.—If, upon inspection and investiga24 tion, the Secretary or the authorized representative of the

25 Secretary believes that an employee of an employer has,
16

•S 1237 RS

1 with respect to personal protective equipment, violated any

2 requirement of section 5 or any standard, rule, or order

3 promulgated pursuant to section 6, or any regulation pre4 scribed pursuant to this Act, the Secretary shall within

5 60 days issue a citation to the employee. Each citation

6 shall be in writing and shall describe with particularity

7 the nature of the violation, including a reference to the

8 provision of this Act, standard, rule, regulation, or order

9 alleged to have been violated. No citation may be issued

10 under this section after the expiration of 6 months follow11 ing the occurrence of any violation.

12 ‘‘(c) NOTIFICATION.—The Secretary shall notify the

13 employee by certified mail of the citation and proposed

14 penalty and that the employee has 15 working days within

15 which to notify the Secretary that the employee wishes to

16 contest the citation or penalty. If no notice is filed by the

17 employee within 15 working days, the citation and the

18 penalty, as proposed, shall be deemed a final order of the

19 Commission and not subject to review by any court or

20 agency.

21 ‘‘(d) CONTESTING OF CITATION.—If the employee

22 notifies the Secretary that the employee intends to contest

23 the citation or proposed penalty, the Secretary shall imme24 diately advise the Commission of such notification, and the

25 Commission shall afford an opportunity for a hearing (in
17

•S 1237 RS

1 accordance section 554 of title 5, United States Code).

2 The Commission shall after the hearing issue an order,

3 based on findings of fact, affirming, modifying, or

4 vacating the Secretary’s citation or proposed penalty, or

5 directing other appropriate relief. Such order shall become

6 final 30 days after issuance of the order.’’.

7 SEC. 10. REDUCED PENALTIES FOR PAPERWORK VIOLA8 TIONS.

9 Section 17 (29 U.S.C. 666) is amended by striking

10 subsection (i) and inserting the following:

11 ‘‘(i) Any employer who violates any of the posting or

12 paperwork requirements, other than fraudulent reporting

13 requirement deficiencies, prescribed under this Act shall

14 not be assessed a civil penalty for such a violation unless

15 the Secretary determines that the employer has violated

16 subsection (a) or (d) with respect to the posting or paper17 work requirements.’’.

18 SEC. 11. REVIEW BY THE COMMISSION.

19 Section 17 (29 U.S.C. 666) is amended by striking

20 subsection (j) and inserting the following:

21 ‘‘(j) The Commission shall have authority to assess

22 all civil penalties under this section. In assessing a penalty

23 under this section for a violation, the Commission shall

24 give due consideration to the appropriateness of the pen25 alty with respect to—
18

•S 1237 RS

1 ‘‘(1) the size of an employer;

2 ‘‘(2) the number of employees exposed to the

3 violation;

4 ‘‘(3) the likely severity of any injuries directly

5 resulting from the violation;

6 ‘‘(4) the probability that the violation could re7 sult in injury or illness;

8 ‘‘(5) the good faith of an employer in correcting

9 the violation after the violation has been identified;

10 ‘‘(6) the history of previous violations by an em11 ployer; and

12 ‘‘(7) whether the violation is the sole result of

13 the failure of an employer to meet a requirement

14 under this Act, or prescribed by regulation, with re15 spect to the posting of notices, the preparation or

16 maintenance of occupational safety and health

17 records, or the preparation, maintenance, or submis18 sion of any written information.’’.

19 SEC. 12. TECHNICAL ASSISTANCE PROGRAM.

20 (a) IN GENERAL.—Section 21(c) (29 U.S.C. 670(c))

21 is amended—

22 (1) by striking ‘‘(c) The’’ and inserting ‘‘(c)(1)

23 The’’;

24 (2) by striking ‘‘(1) provide’’ and inserting ‘‘(A)

25 provide’’;
19

•S 1237 RS

1 (3) by striking ‘‘(2) consult’’ and inserting ‘‘(B)

2 consult’’; and

3 (4) by adding at the end the following:

4 ‘‘(2)(A) The Secretary shall, through the authority

5 granted under section 7(c) and paragraph (1), enter into

6 cooperative agreements with States for the provision of

7 consultation services by such States to employers concern8 ing the provision of safe and healthful working conditions.

9 ‘‘(B)(i) Except as provided in clause (ii), the Sec10 retary shall reimburse a State that enters into a coopera11 tive agreement under subparagraph (A) in an amount that

12 equals 90 percent of the costs incurred by the State for

13 the provision of consultation services under such agree14 ment.

15 ‘‘(ii) A State shall be reimbursed by the Secretary

16 for 90 percent of the costs incurred by the State for the

17 provision of—

18 ‘‘(I) training approved by the Secretary for

19 State personnel operating under a cooperative agree20 ment; and

21 ‘‘(II) specified out-of-State travel expenses in22 curred by such personnel.

23 ‘‘(iii) A reimbursement paid to a State under this

24 subparagraph shall be limited to costs incurred by such
20

•S 1237 RS

1 State for the provision of consultation services under this

2 paragraph and the costs described in clause (ii).

3 ‘‘(C) Notwithstanding any other provisions of law,

4 not less than 15 percent of the total amount of funds ap5 propriated for the Occupational Safety and Health Admin6 istration for a fiscal year shall be used for education, con7 sultation, and outreach efforts.’’.

8 (b) PILOT PROGRAM.—Section 21 (29 U.S.C. 670)

9 is amended by adding at the end the following:

10 ‘‘(d)(1) Not later than 90 days after the date of en11 actment of this subsection, the Secretary shall establish

12 and carry out a pilot program in 3 States to provide expe13 dited consultation services, with respect to the provision

14 of safe and healthful working conditions, to employers that

15 are small businesses (as the term is defined by the Admin16 istrator of the Small Business Administration). The Sec17 retary shall carry out the program for a period not to ex18 ceed 2 years.

19 ‘‘(2) The Secretary shall provide consultation services

20 under paragraph (1) not later than 4 weeks after the date

21 on which the Secretary receives a request from an em22 ployer.

23 ‘‘(3) The Secretary may impose a nominal fee to an

24 employer requesting consultation services under para25 graph (1). The fee shall be in an amount determined by
21

•S 1237 RS

1 the Secretary. Employers paying a fee shall receive prior2 ity consultation services by the Secretary.

3 ‘‘(4) In lieu of issuing a citation under section 9 to

4 an employer for a violation found by the Secretary during

5 a consultation under paragraph (1), the Secretary shall

6 permit the employer to carry out corrective measures to

7 correct the conditions causing the violation. The Secretary

8 shall conduct not more than 2 visits to the workplace of

9 the employer to determine if the employer has carried out

10 the corrective measures. The Secretary shall issue a cita11 tion as prescribed under section 5 if, after such visits, the

12 employer has failed to carry out the corrective measures.

13 ‘‘(5) Not later than 90 days after the termination of

14 the program under paragraph (1), the Secretary shall pre15 pare and submit a report to the appropriate committees

16 of Congress that contains an evaluation of the implemen17 tation of the pilot program.’’.

18 SEC. 13. VOLUNTARY PROTECTION PROGRAMS.

19 (a) COOPERATIVE AGREEMENTS.—The Secretary of

20 Labor shall establish cooperative agreements with employ21 ers to encourage the establishment of comprehensive safe22 ty and health management systems that include—

23 (1) requirements for systematic assessment of

24 hazards;
22

•S 1237 RS

1 (2) comprehensive hazard prevention, mitiga2 tion, and control programs;

3 (3) active and meaningful management and em4 ployee participation in the voluntary program de5 scribed in subsection (b); and

6 (4) employee safety and health training.

7 (b) VOLUNTARY PROTECTION PROGRAM.—

8 (1) IN GENERAL.—The Secretary of Labor shall

9 establish and carry out a voluntary protection pro10 gram (consistent with subsection (a)) to encourage

11 and recognize the achievement of excellence in both

12 the technical and managerial protection of employees

13 from occupational hazards. The Secretary of Labor

14 shall encourage small businesses (as the term is de15 fined by the Administrator of the Small Business

16 Administration) to participate in the voluntary pro17 tection program by carrying out outreach and assist18 ance initiatives and developing program require19 ments that address the needs of small businesses.

20 (2) PROGRAM REQUIREMENT.—The voluntary

21 protection program shall include the following:

22 (A) APPLICATION.—Employers who volun23 teer under the program shall be required to

24 submit an application to the Secretary of Labor

25 demonstrating that the worksite with respect to
23

•S 1237 RS

1 which the application is made meets such re2 quirements as the Secretary of Labor may re3 quire for participation in the program.

4 (B) ONSITE EVALUATIONS.—There shall

5 be onsite evaluations by representatives of the

6 Secretary of Labor to ensure a high level of

7 protection of employees. The onsite visits shall

8 not result in enforcement of citations under the

9 Occupational Safety and Health Act of 1970

10 (29 U.S.C. 651 et seq.).

11 (C) INFORMATION.—Employers who are

12 approved by the Secretary of Labor for partici13 pation in the program shall assure the Sec14 retary of Labor that information about the

15 safety and health program of the employers

16 shall be made readily available to the Secretary

17 of Labor to share with employees.

18 (D) REEVALUATIONS.—Periodic reevalua19 tions by the Secretary of Labor of the employ20 ers shall be required for continued participation

21 in the program.

22 (3) EXEMPTIONS.—A site with respect to which

23 a program has been approved shall, during partici24 pation in the program be exempt from inspections or

25 investigations and certain paperwork requirements
24

•S 1237 RS

1 to be determined by the Secretary of Labor, except

2 that this paragraph shall not apply to inspections or

3 investigations arising from employee complaints, fa4 talities, catastrophes, or significant toxic releases.

5 SEC. 14. PREVENTION OF ALCOHOL AND SUBSTANCE

6 ABUSE.

7 The Occupational Safety and Health Act of 1970 (29

8 U.S.C. 651 et seq.) is amended—

9 (1) by striking sections 29, 30, and 31;

10 (2) by redesignating sections 32, 33, and 34 as

11 sections 30, 31, and 32, respectively; and

12 (3) by inserting after section 28 (29 U.S.C.

13 676) the following:

14 ‘‘SEC. 29. ALCOHOL AND SUBSTANCE ABUSE TESTING.

15 ‘‘(a) PROGRAM PURPOSE.—In order to secure a safe

16 workplace, employers may establish and carry out an alco17 hol and substance abuse testing program in accordance

18 with subsection (b).

19 ‘‘(b) FEDERAL GUIDELINES.—An alcohol and sub20 stance abuse testing program described in subsection (a)

21 shall meet the following requirements:

22 ‘‘(1) SUBSTANCE ABUSE.—A substance abuse

23 testing program shall permit the use of an onsite or

24 offsite urine screening or other recognized screening

25 methods, so long as the confirmation tests are per-
25

•S 1237 RS

1 formed in accordance with the mandatory guidelines

2 for Federal workplace testing programs published by

3 the Secretary of Health and Human Services on

4 April 11, 1988, at section 11979 of title 53, Code

5 of Federal Regulations (including any amendments

6 to such guidelines), in a lab that is subject to the

7 requirements of subpart B of such mandatory guide8 lines.

9 ‘‘(2) ALCOHOL.—The alcohol testing component

10 of the program shall take the form of alcohol breath

11 analysis and shall conform to any guidelines devel12 oped by the Secretary of Transportation for alcohol

13 testing of mass transit employees under the Depart14 ment of Transportation and Related Agencies Ap15 propriations Act, 1992.

16 ‘‘(c) TEST REQUIREMENTS.—This section shall not

17 be construed to prohibit an employer from requiring—

18 ‘‘(1) an applicant for employment to submit to

19 and pass an alcohol or substance abuse test before

20 employment by the employer; or

21 ‘‘(2) an employee, including managerial person22 nel, to submit to and pass an alcohol or substance

23 abuse test—

24 ‘‘(A) on a for-cause basis or where the em25 ployer has reasonable suspicion to believe that
26

•S 1237 RS

1 such employee is using or is under the influence

2 of alcohol or a controlled substance;

3 ‘‘(B) where such test is administered as

4 part of a scheduled medical examination;

5 ‘‘(C) in the case of an accident or incident,

6 involving the actual or potential loss of human

7 life, bodily injury, or property damage;

8 ‘‘(D) during the participation of an em9 ployee in an alcohol or substance abuse treat10 ment program, and for a reasonable period of

11 time (not to exceed 5 years) after the conclu12 sion of such program; or

13 ‘‘(E) on a random selection basis in work

14 units, locations, or facilities.

15 ‘‘(d) CONSTRUCTION.—Nothing in this section shall

16 be construed to require an employer to establish an alcohol

17 and substance abuse testing program for applicants or em18 ployees or make employment decisions based on such test

19 results.

20 ‘‘(e) PREEMPTION.—The provisions of this section

21 shall preempt any provision of State law to the extent that

22 such State law is inconsistent with this section.

23 ‘‘(f) INVESTIGATIONS.—The Secretary is authorized

24 to conduct testing of employees (including managerial per25 sonnel) of an employer for use of alcohol or controlled sub-
27

•S 1237 RS

1 stances during any investigations of a work-related fatality

2 or serious injury.’’.

3 SEC. 15. CONSULTATION ALTERNATIVES.

4 Subsection (a) of section 9 (29 U.S.C. 658(a)) is

5 amended to read as follows:

6 ‘‘(a)(1) Nothing in this Act shall be construed as pro7 hibiting the Secretary or the authorized representative of

8 the Secretary from providing technical or compliance as9 sistance to an employer in correcting a violation discovered

10 during an inspection or investigation under this Act with11 out issuing a citation.

12 ‘‘(2) Except as provided in paragraph (3), if, upon

13 an inspection or investigation, the Secretary or an author14 ized representative of the Secretary believes that an em15 ployer has violated a requirement of section 5, of any regu16 lation, rule, or order promulgated pursuant to section 6,

17 or of any regulations prescribed pursuant to this Act, the

18 Secretary may with reasonable promptness issue a citation

19 to the employer. Each citation shall be in writing and shall

20 describe with particularity the nature of a violation, in21 cluding a reference to the provision of the Act, regulation,

22 rule, or order alleged to have been violated. The citation

23 shall fix a reasonable time for the abatement of the viola24 tion.
28

•S 1237 RS

1 ‘‘(3) The Secretary or the authorized representative

2 of the Secretary—

3 ‘‘(A) may issue a warning in lieu of a citation

4 with respect to a violation that has no significant re5 lationship to employee safety or health; and

6 ‘‘(B) may issue a warning in lieu of a citation

7 in cases in which an employer in good faith acts

8 promptly to abate a violation if the violation is not

9 a willful or repeated violation.’’.

10 SECTION 1. SHORT TITLE; REFERENCE.

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

12 ‘‘Safety Advancement for Employees Act of 1997’’ or the

13 ‘‘SAFE Act’’.

14 (b) REFERENCE.—Whenever in this Act an amend15 ment or repeal is expressed in terms of an amendment to,

16 or repeal of, a section or other provision, the reference shall

17 be considered to be made to a section or other provision

18 of the Occupational Safety and Health Act of 1970 (29

19 U.S.C. 651 et seq.).

20 SEC. 2. PURPOSE.

21 Section 2(b) (29 U.S.C. 651(b)) is amended—

22 (1) in paragraph (13), by striking the period

23 and inserting ‘‘; and’’; and

24 (2) by adding at the end the following:
29

•S 1237 RS

1 ‘‘(14) by increasing the joint cooperation of em2 ployers, employees, and the Secretary of Labor in the

3 effort to ensure safe and healthful working conditions

4 for employees.’’.

5 SEC. 3. EMPLOYEE AND EMPLOYER PARTICIPATION PRO6 GRAMS.

7 Section 4 (29 U.S.C. 653) is amended by adding at

8 the end the following:

9 ‘‘(c)(1) In order to further carry out the purpose of

10 this Act to encourage employers and employees in their ef11 forts to reduce occupational safety and health hazards, em12 ployers may establish employer and employee participation

13 programs which exist for the sole purpose of addressing safe

14 and healthful working conditions.

15 ‘‘(2) An entity created under a program described in

16 paragraph (1) shall not constitute a labor organization for

17 purposes of section 8(a)(2) of the National Labor Relations

18 Act (29 U.S.C. 158(a)(2)) or a representative for purposes

19 of sections 1 and 2 of the Railway Labor Act (45 U.S.C.

20 151 and 151a).

21 ‘‘(3) Nothing in this subsection shall be construed to

22 affect employer obligations under section 8(a)(5) of the Na23 tional Labor Relations Act (29 U.S.C. 158(a)(5)) to deal

24 with a certified or recognized employee representative with
30

•S 1237 RS

1 respect to health and safety matters to the extent otherwise

2 required by law.’’.

3 SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COMMIT4 TEE.

5 Section 7 (29 U.S.C. 656) is amended by adding at

6 the end the following:

7 ‘‘(d)(1) Not later than 3 months after the date of enact8 ment of this subsection, the Secretary shall establish an ad9 visory committee (pursuant to the Federal Advisory Com10 mittee Act (5 U.S.C. App)) to carry out the duties described

11 in paragraph (3).

12 ‘‘(2) The advisory committee shall be composed of—

13 ‘‘(A) 3 members who are employees;

14 ‘‘(B) 3 members who are employers;

15 ‘‘(C) 2 members who are members of the general

16 public; and

17 ‘‘(D) 1 member who is a State official from a

18 State plan State.

19 Each member of the advisory committee shall have expertise

20 in workplace safety and health as demonstrated by the edu21 cational background of the member.

22 ‘‘(3) The advisory committee shall advise and make

23 recommendations to the Secretary with respect to the estab24 lishment and implementation of a consultation services pro25 gram under section 8A.’’.
31

•S 1237 RS

1 SEC. 5. THIRD PARTY CONSULTATION SERVICES PROGRAM.

2 (a) PROGRAM.—The Act (29 U.S.C. 651 et seq.) is

3 amended by inserting after section 8 the following:

4 ‘‘SEC. 8A. THIRD PARTY CONSULTATION SERVICES PRO5 GRAM.

6 ‘‘(a) ESTABLISHMENT OF PROGRAM.—

7 ‘‘(1) IN GENERAL.—Not later than 18 months

8 after the date of enactment of this section, the Sec9 retary shall establish and implement, by regulation, a

10 program that qualifies individuals to provide con11 sultation services to employers to assist employers in

12 the identification and correction of safety and health

13 hazards in the workplaces of employers.

14 ‘‘(2) ELIGIBILITY.—Each of the following indi15 viduals shall be eligible to be qualified under the pro16 gram:

17 ‘‘(A) An individual licensed by a State au18 thority as a physician, industrial hygienist, pro19 fessional engineer, safety engineer, safety profes20 sional, or registered nurse.

21 ‘‘(B) An individual who has been employed

22 as an inspector for a State plan State or as a

23 Federal occupational safety and health inspector

24 for not less than a 5-year period.

25 ‘‘(C) An individual qualified in an occupa26 tional health or safety field by an organization
32

•S 1237 RS

1 whose program has been accredited by a nation2 ally recognized private accreditation organiza3 tion or by the Secretary.

4 ‘‘(D) An individual who has not less than

5 10 years expertise in workplace safety and

6 health.

7 ‘‘(E) Other individuals determined to be

8 qualified by the Secretary.

9 ‘‘(3) GEOGRAPHICAL SCOPE OF CONSULTATION

10 SERVICES.—An individual qualified under the pro11 gram may provide consultation services in any State.

12 ‘‘(b) SAFETY AND HEALTH REGISTRY.—The Secretary

13 shall develop and maintain a registry that includes all in14 dividuals that are qualified under the program to provide

15 the consultation services described in subsection (a) and

16 shall publish and make such registry readily available to

17 the general public.

18 ‘‘(c) DISCIPLINARY ACTIONS.—

19 ‘‘(1) IN GENERAL.—The Secretary may revoke

20 the status of an individual qualified under subsection

21 (a) if the Secretary determines that the individual—

22 ‘‘(A) has failed to meet the requirements of

23 the program; or

24 ‘‘(B) has committed malfeasance, gross neg25 ligence, or fraud in connection with any con-
33

•S 1237 RS

1 sultation services provided by the qualified indi2 vidual.

3 ‘‘(d) CONSULTATION SERVICES.—

4 ‘‘(1) SCOPE OF CONSULTATION SERVICES.—

5 ‘‘(A) IN GENERAL.—The consultation serv6 ices described in subsection (a), and provided by

7 an individual qualified under the program, shall

8 include an evaluation of the workplace of an em9 ployer to identify any violations of this Act and

10 appropriate corrective measures to address the

11 violations that are identified.

12 ‘‘(B) NON-FIXED WORK SITES.—With re13 spect to the employees of an employer who do not

14 work at a fixed site, the consultation services de15 scribed in subsection (a), and provided by an in16 dividual qualified under the program, shall in17 clude an evaluation of the safety and health pro18 gram of the employer to identify any violations

19 of this Act and appropriate corrective measures

20 to address the violations that are identified.

21 ‘‘(2) CONSULTATION REPORT.—Not later than 30

22 business days after an individual qualified under the

23 program completes the evaluations described in this

24 subsection, or on a date agreed on by the individual

25 and the employer, the individual shall prepare and
34

•S 1237 RS

1 submit a written report to the employer that includes

2 an identification of any violations of this Act and ap3 propriate corrective measures to address the violations

4 that are identified.

5 ‘‘(3) REINSPECTION.—Not later than 90 days

6 after an individual qualified under the program sub7 mits a written report to an employer under para8 graph (2), or on a date agreed on by the individual

9 and the employer, the individual shall reinspect the

10 workplace of the employer to verify that any occupa11 tional safety or health violations identified in the re12 port have been corrected. If, after such reinspection,

13 the individual determines that the violations identi14 fied in the report have been corrected or are being cor15 rected pursuant to a written plan described in this

16 paragraph, the individual shall provide the employer

17 a declaration of resolution for that workplace. The

18 written plan must identify the violation and the steps

19 to be taken to achieve abatement and, where nec20 essary, how employees will be protected from exposure

21 to the violative condition in the interim until abate22 ment is complete. Compliance with the written plan

23 shall be verified by progress reports or reinspection by

24 the qualified individual.
35

•S 1237 RS

1 ‘‘(4) GUIDELINES.—The Secretary, in consulta2 tion with an advisory committee established in sec3 tion 7(d), shall develop model guidelines for use in

4 evaluating a workplace under paragraph (1).

5 ‘‘(e) ACCESS TO RECORDS.—Any records relating to

6 consultation services (as described in subsection (a)) pro7 vided by an individual qualified under the program, or

8 records, reports, or other information prepared in connec9 tion with safety and health inspections, audits, or reviews

10 conducted by or for an employer and not required under

11 this Act, shall not be admissible in a court of law or admin12 istrative proceeding or enforcement proceeding against the

13 employer except that such records may be used as evidence

14 for purposes of a disciplinary action under subsection (c).

15 ‘‘(f) EXEMPTION.—

16 ‘‘(1) IN GENERAL.—If an employer utilizes an

17 individual qualified under the program, to provide

18 consultation services described in subsection (a), and

19 receives a declaration of resolution under subsection

20 (d)(3), the employer shall be exempt from the assess21 ment of any civil penalty under section 17 for the

22 workplace covered by the declaration of resolution for

23 a period of 2 years after the date the employer re24 ceives the declaration.
36

•S 1237 RS

1 ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not

2 apply—

3 ‘‘(A) if the employer involved has not made

4 a good faith effort to remain in compliance as

5 required under the declaration of resolution; or

6 ‘‘(B) to the extent that there has been a fun7 damental change in the hazards of the workplace.

8 ‘‘(g) DEFINITION.—In this section, the term ‘program’

9 means the program established by the Secretary under sub10 section (a).’’.

11 SEC. 6. INDEPENDENT SCIENTIFIC PEER REVIEW.

12 Section 6(b) (29 U.S.C. 655(b)(1)) is amended—

13 (1) by striking: ‘‘(4) Within’’ and inserting:

14 ‘‘(4)(A) Within’’; and

15 (2) by adding at the end the following:

16 ‘‘(B)(i) Prior to issuing a final standard under this

17 paragraph, the Secretary shall submit the draft final stand18 ard and a copy of the administrative record to the National

19 Academy of Sciences for review in accordance with clause

20 (ii).

21 ‘‘(ii)(I) The National Academy of Sciences shall ap22 point an independent Scientific Review Committee.

23 ‘‘(II) The Scientific Review Committee shall conduct

24 an independent review of the draft final standard and the

25 scientific literature and make written recommendations
37

•S 1237 RS

1 with respect to the draft final standard to the Secretary,

2 including recommendations relating to the appropriateness

3 and adequacy of the scientific data, scientific methodology,

4 and scientific conclusions, adopted by the Secretary.

5 ‘‘(III) If the Secretary decides to modify the draft final

6 standard in response to the recommendations provided by

7 the Scientific Review Committee, the Scientific Review

8 Committee shall be given an opportunity to review and

9 comment on the modifications before the final standard is

10 issued.

11 ‘‘(IV) The recommendations of the Scientific Review

12 Committee shall be published with the final standard in the

13 Federal Register.’’.

14 SEC. 7. CONTINUING EDUCATION AND PROFESSIONAL CER15 TIFICATION FOR CERTAIN OCCUPATIONAL

16 SAFETY AND HEALTH ADMINISTRATION PER17 SONNEL.

18 Section 8 (29 U.S.C. 657) is amended by adding at

19 the end the following:

20 ‘‘(h) Any Federal employee responsible for enforcing

21 this Act shall (not later than 2 years after the date of enact22 ment of this subsection or 2 years after the initial employ23 ment of the employee) meet the eligibility requirements pre24 scribed under subsection (a)(2) of section 8A.
38

•S 1237 RS

1 ‘‘(i) The Secretary shall ensure that any Federal em2 ployee responsible for enforcing this Act who carries out in3 spections or investigations under this section, receive profes4 sional education and training at least every 5 years as pre5 scribed by the Secretary.’’.

6 SEC. 8. INSPECTION PROCEDURES AND QUOTAS.

7 (a) IN GENERAL.—Section 8(f) (29 U.S.C. 657(f)) is

8 amended—

9 (1) in paragraph (1)—

10 (A) in the second sentence, by inserting be11 fore ‘‘and a copy’’ the following: ‘‘and shall state

12 whether the alleged violation has been brought to

13 the attention of the employer and if so, whether

14 the employer has refused to take any action to

15 correct the alleged violation,’’;

16 (B) by inserting after the third sentence the

17 following: ‘‘The inspection shall be conducted for

18 the limited purpose of determining whether the

19 violation exists. During such an inspection, the

20 Secretary may take appropriate actions with re21 spect to health and safety violations that are not

22 within the scope of the inspection and that are

23 observed by the Secretary or an authorized rep24 resentative of the Secretary during the inspec25 tion.’’; and
39

•S 1237 RS

1 (C) by inserting before the last period the

2 following: ‘‘, and, upon request by the employee

3 or employee representative, shall provide a writ4 ten statement of the reasons for the determina5 tion of the Secretary’’; and

6 (2) by adding at the end thereof the following:

7 ‘‘(3) The Secretary or an authorized representative of

8 the Secretary may, as a method of investigating an alleged

9 violation or danger under this subsection, attempt, if fea10 sible, to contact an employer by telephone, facsimile, or

11 other appropriate methods to determine whether—

12 ‘‘(A) the employer has taken corrective actions

13 with respect to the alleged violation or danger; or

14 ‘‘(B) there are reasonable grounds to believe that

15 a hazard exists.

16 ‘‘(4) The Secretary is not required to conduct an in17 spection under this subsection if the Secretary determines

18 that a request for an inspection was made for reasons other

19 than the safety and health of the employees of an employer

20 or that the employees of an employer are not at risk.’’.

21 (b) QUOTAS.—Section 9 (29 U.S.C. 658) is amended

22 by adding at the end the following:

23 ‘‘(d) The Secretary shall not establish for any employee

24 within the Occupational Safety and Health Administration

25 (including any regional director, area director, supervisor,
40

•S 1237 RS

1 or inspector) a quota with respect to the number of inspec2 tions conducted, the number of citations issued, or the

3 amount of penalties collected, in accordance with this Act.

4 ‘‘(e) Not later than 12 months after the date of enact5 ment of this subsection and annually thereafter, the Sec6 retary shall report on the number of employers that are in7 spected under this Act and determined to be in compliance

8 with the requirements prescribed under this Act.’’.

9 SEC. 9. PERSONAL RESPONSIBILITIES.

10 (a) THE USE OF ALTERNATIVE METHODS AS AN AF11 FIRMATIVE DEFENSE.—Section 9 (29 U.S.C. 658), as

12 amended by section 8, is further amended by adding at the

13 end the following:

14 ‘‘(f)(1) No citation may be issued under subsection (a)

15 to an employer unless the employer knew, or with the exer16 cise of reasonable diligence, would have known, of the pres17 ence of an alleged violation.

18 ‘‘(2) No citation shall be issued under subsection (a)

19 to an employer for an alleged violation of section 5, any

20 standard, rule, or order promulgated pursuant to section

21 6, any other regulation promulgated under this Act, or any

22 other occupational safety and health standard, if the em23 ployer demonstrates that—
41

•S 1237 RS

1 ‘‘(A) the employees of the employer have been

2 provided with the proper training and equipment to

3 prevent such a violation;

4 ‘‘(B) work rules designed to prevent such a viola5 tion have been established and adequately commu6 nicated to the employees by the employer and the em7 ployer has taken reasonable measures to discipline

8 employees when violations of the work rules have been

9 discovered;

10 ‘‘(C) the failure of employees to observe work

11 rules led to the violation; and

12 ‘‘(D) reasonable measures have been taken by the

13 employer to discover any such violation.

14 ‘‘(g) A citation issued under subsection (a) to an em15 ployer who violates section 5, any standard, rule, or order

16 promulgated pursuant to section 6, or any other regulation

17 promulgated under this Act shall be vacated if such em18 ployer demonstrates that the employees of such employer

19 were protected by alternative methods that are equally or

20 more protective of the safety and health of the employees

21 than the methods required by such standard, rule, order,

22 or regulation in the factual circumstances underlying the

23 citation.
42

•S 1237 RS

1 ‘‘(h) Subsections (f) and (g) shall not be construed to

2 eliminate or modify other defenses that may exist to any

3 citation.’’.

4 (b) EMPLOYEE RESPONSIBILITY.—The Occupational

5 Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) is

6 amended by inserting after section 10 the following:

7 ‘‘SEC. 10A. EMPLOYEE RESPONSIBILITY.

8 ‘‘(a) IN GENERAL.—Notwithstanding any other provi9 sion of this Act, an employee who, with respect to personal

10 protective equipment, willfully violates any requirement of

11 section 5 or any standard, rule, or order promulgated pur12 suant to section 6, or any regulation prescribed pursuant

13 to this Act, may be assessed a civil penalty, as determined

14 by the Secretary, for each violation.

15 ‘‘(b) CITATIONS.—If, upon inspection and investiga16 tion, the Secretary or the authorized representative of the

17 Secretary believes that an employee of an employer has,

18 with respect to personal protective equipment, violated any

19 requirement of section 5 or any standard, rule, or order

20 promulgated pursuant to section 6, or any regulation pre21 scribed pursuant to this Act, the Secretary shall within 60

22 days issue a citation to the employee. Each citation shall

23 be in writing and shall describe with particularity the na24 ture of the violation, including a reference to the provision

25 of this Act, standard, rule, regulation, or order alleged to
43

•S 1237 RS

1 have been violated. No citation may be issued under this

2 section after the expiration of 6 months following the occur3 rence of any violation.

4 ‘‘(c) NOTIFICATION.—The Secretary shall notify the

5 employee by certified mail of the citation and proposed pen6 alty and that the employee has 15 working days within

7 which to notify the Secretary that the employee wishes to

8 contest the citation or penalty. If no notice is filed by the

9 employee within 15 working days, the citation and the pen10 alty, as proposed, shall be deemed a final order of the Com11 mission and not subject to review by any court or agency.

12 ‘‘(d) CONTESTING OF CITATION.—If the employee noti13 fies the Secretary that the employee intends to contest the

14 citation or proposed penalty, the Secretary shall imme15 diately advise the Commission of such notification, and the

16 Commission shall afford an opportunity for a hearing (in

17 accordance section 554 of title 5, United States Code). The

18 Commission shall after the hearing issue an order, based

19 on findings of fact, affirming, modifying, or vacating the

20 Secretary’s citation or proposed penalty, or directing other

21 appropriate relief. Such order shall become final 30 days

22 after issuance of the order.’’.
44

•S 1237 RS

1 SEC. 10. REDUCED PENALTIES FOR PAPERWORK VIOLA2 TIONS.

3 Section 17 (29 U.S.C. 666) is amended by striking

4 subsection (i) and inserting the following:

5 ‘‘(i) Any employer who violates any of the posting or

6 paperwork requirements, other than fraudulent reporting

7 requirement deficiencies, prescribed under this Act shall not

8 be assessed a civil penalty for such a violation unless the

9 Secretary determines that the employer has violated sub10 section (a) or (d) with respect to the posting or paperwork

11 requirements.’’.

12 SEC. 11. REVIEW BY THE COMMISSION.

13 Section 17 (29 U.S.C. 666) is amended by striking

14 subsection (j) and inserting the following:

15 ‘‘(j) The Commission shall have authority to assess all

16 civil penalties under this section. In assessing a penalty

17 under this section for a violation, the Commission shall give

18 due consideration to the appropriateness of the penalty with

19 respect to—

20 ‘‘(1) the size of an employer;

21 ‘‘(2) the number of employees exposed to the vio22 lation;

23 ‘‘(3) the likely severity of any injuries directly

24 resulting from the violation;

25 ‘‘(4) the probability that the violation could re26 sult in injury or illness;
45

•S 1237 RS

1 ‘‘(5) the good faith of an employer in correcting

2 the violation after the violation has been identified;

3 ‘‘(6) the history of previous violations by an em4 ployer; and

5 ‘‘(7) whether the violation is the sole result of the

6 failure of an employer to meet a requirement under

7 this Act, or prescribed by regulation, with respect to

8 the posting of notices, the preparation or maintenance

9 of occupational safety and health records, or the prep10 aration, maintenance, or submission of any written

11 information.’’.

12 SEC. 12. TECHNICAL ASSISTANCE PROGRAM.

13 (a) IN GENERAL.—Section 21(c) (29 U.S.C. 670(c)) is

14 amended—

15 (1) by striking ‘‘(c) The’’ and inserting ‘‘(c)(1)

16 The’’;

17 (2) by striking ‘‘(1) provide’’ and inserting ‘‘(A)

18 provide’’;

19 (3) by striking ‘‘(2) consult’’ and inserting ‘‘(B)

20 consult’’; and

21 (4) by adding at the end the following:

22 ‘‘(2)(A) The Secretary shall, through the authority

23 granted under section 7(c) and paragraph (1), enter into

24 cooperative agreements with States for the provision of con-
46

•S 1237 RS

1 sultation services by such States to employers concerning

2 the provision of safe and healthful working conditions.

3 ‘‘(B)(i) Except as provided in clause (ii), the Secretary

4 shall reimburse a State that enters into a cooperative agree5 ment under subparagraph (A) in an amount that equals

6 90 percent of the costs incurred by the State for the provi7 sion of consultation services under such agreement.

8 ‘‘(ii) A State shall be reimbursed by the Secretary for

9 90 percent of the costs incurred by the State for the provi10 sion of—

11 ‘‘(I) training approved by the Secretary for

12 State personnel operating under a cooperative agree13 ment; and

14 ‘‘(II) specified out-of-State travel expenses in15 curred by such personnel.

16 ‘‘(iii) A reimbursement paid to a State under this sub17 paragraph shall be limited to costs incurred by such State

18 for the provision of consultation services under this para19 graph and the costs described in clause (ii).

20 ‘‘(C) Notwithstanding any other provisions of law, not

21 less than 15 percent of the total amount of funds appro22 priated for the Occupational Safety and Health Adminis23 tration for a fiscal year shall be used for education, con24 sultation, and outreach efforts.’’.
47

•S 1237 RS

1 (b) PILOT PROGRAM.—Section 21 (29 U.S.C. 670) is

2 amended by adding at the end the following:

3 ‘‘(d)(1) Not later than 90 days after the date of enact4 ment of this subsection, the Secretary shall establish and

5 carry out a pilot program in 3 States to provide expedited

6 consultation services, with respect to the provision of safe

7 and healthful working conditions, to employers that are

8 small businesses (as the term is defined by the Adminis9 trator of the Small Business Administration). The Sec10 retary shall carry out the program for a period not to exceed

11 2 years.

12 ‘‘(2) The Secretary shall provide consultation services

13 under paragraph (1) not later than 4 weeks after the date

14 on which the Secretary receives a request from an employer.

15 ‘‘(3) The Secretary may impose a nominal fee to an

16 employer requesting consultation services under paragraph

17 (1). The fee shall be in an amount determined by the Sec18 retary. Employers paying a fee shall receive priority con19 sultation services by the Secretary.

20 ‘‘(4) In lieu of issuing a citation under section 9 to

21 an employer for a violation found by the Secretary during

22 a consultation under paragraph (1), the Secretary shall

23 permit the employer to carry out corrective measures to cor24 rect the conditions causing the violation. The Secretary

25 shall conduct not more than 2 visits to the workplace of
48

•S 1237 RS

1 the employer to determine if the employer has carried out

2 the corrective measures. The Secretary shall issue a citation

3 as prescribed under section 5 if, after such visits, the em4 ployer has failed to carry out the corrective measures.

5 ‘‘(5) Not later than 90 days after the termination of

6 the program under paragraph (1), the Secretary shall pre7 pare and submit a report to the appropriate committees

8 of Congress that contains an evaluation of the implementa9 tion of the pilot program.’’.

10 SEC. 13. VOLUNTARY PROTECTION PROGRAMS.

11 (a) COOPERATIVE AGREEMENTS.—The Secretary of

12 Labor shall establish cooperative agreements with employers

13 to encourage the establishment of comprehensive safety and

14 health management systems that include—

15 (1) requirements for systematic assessment of

16 hazards;

17 (2) comprehensive hazard prevention, mitigation,

18 and control programs;

19 (3) active and meaningful management and em20 ployee participation in the voluntary program de21 scribed in subsection (b); and

22 (4) employee safety and health training.

23 (b) VOLUNTARY PROTECTION PROGRAM.—

24 (1) IN GENERAL.—The Secretary of Labor shall

25 establish and carry out a voluntary protection pro-
49

•S 1237 RS

1 gram (consistent with subsection (a)) to encourage

2 and recognize the achievement of excellence in both

3 the technical and managerial protection of employees

4 from occupational hazards. The Secretary of Labor

5 shall encourage small businesses (as the term is de6 fined by the Administrator of the Small Business Ad7 ministration) to participate in the voluntary protec8 tion program by carrying out outreach and assistance

9 initiatives and developing program requirements that

10 address the needs of small businesses.

11 (2) PROGRAM REQUIREMENT.—The voluntary

12 protection program shall include the following:

13 (A) APPLICATION.—Employers who volun14 teer under the program shall be required to sub15 mit an application to the Secretary of Labor

16 demonstrating that the worksite with respect to

17 which the application is made meets such re18 quirements as the Secretary of Labor may re19 quire for participation in the program.

20 (B) ONSITE EVALUATIONS.—There shall be

21 onsite evaluations by representatives of the Sec22 retary of Labor to ensure a high level of protec23 tion of employees. The onsite visits shall not re24 sult in enforcement of citations under the Occu-
50

•S 1237 RS

1 pational Safety and Health Act of 1970 (29

2 U.S.C. 651 et seq.).

3 (C) INFORMATION.—Employers who are ap4 proved by the Secretary of Labor for participa5 tion in the program shall assure the Secretary of

6 Labor that information about the safety and

7 health program of the employers shall be made

8 readily available to the Secretary of Labor to

9 share with employees.

10 (D) REEVALUATIONS.—Periodic reevalua11 tions by the Secretary of Labor of the employers

12 shall be required for continued participation in

13 the program.

14 (3) EXEMPTIONS.—A site with respect to which

15 a program has been approved shall, during participa16 tion in the program be exempt from inspections or in17 vestigations and certain paperwork requirements to be

18 determined by the Secretary of Labor, except that this

19 paragraph shall not apply to inspections or investiga20 tions arising from employee complaints, fatalities, ca21 tastrophes, or significant toxic releases.
51

•S 1237 RS

1 SEC. 14. PREVENTION OF ALCOHOL AND SUBSTANCE

2 ABUSE.

3 The Occupational Safety and Health Act of 1970 (29

4 U.S.C. 651 et seq.) is amended by adding at the end the

5 following:

6 ‘‘SEC. 35. ALCOHOL AND SUBSTANCE ABUSE TESTING.

7 ‘‘(a) PROGRAM PURPOSE.—In order to secure a safe

8 workplace, employers may establish and carry out an alco9 hol and substance abuse testing program in accordance with

10 subsection (b).

11 ‘‘(b) FEDERAL GUIDELINES.—

12 ‘‘(1) IN GENERAL.—An alcohol and substance

13 abuse testing program described in subsection (a)

14 shall meet the following requirements:

15 ‘‘(A) SUBSTANCE ABUSE.—A substance

16 abuse testing program shall permit the use of an

17 onsite or offsite drug testing.

18 ‘‘(B) ALCOHOL.—The alcohol testing compo19 nent of the program shall take the form of alco20 hol breath analysis and shall conform to any

21 guidelines developed by the Secretary of Trans22 portation for alcohol testing of mass transit em23 ployees under the Department of Transportation

24 and Related Agencies Appropriations Act, 1992.

25 ‘‘(2) DEFINITION.—For purposes of this section

26 the term ‘‘alcohol and substance abuse testing pro-
52

•S 1237 RS

1 gram’’ means any program under which test proce2 dures are used to take and analyze blood, breath,

3 hair, urine, saliva, or other body fluids or materials

4 for the purpose of detecting the presence or absence of

5 alcohol or a drug or its metabolites. In the case of

6 urine testing, the confirmation tests must be per7 formed in accordance with the mandatory guidelines

8 for Federal workplace testing programs published by

9 the Secretary of Health and Human Services on

10 April 11, 1988, at section 11979 of title 53, Code of

11 Federal Regulations (including any amendments to

12 such guidelines). Proper laboratory protocols and pro13 cedures shall be used to assure accuracy and fairness

14 and laboratories must be subject to the requirements

15 of subpart B of the mandatory guidelines, State cer16 tification, the Clinical Laboratory Improvements Act

17 or the College of American Pathologists.

18 ‘‘(c) TEST REQUIREMENTS.—This section shall not be

19 construed to prohibit an employer from requiring—

20 ‘‘(1) an applicant for employment to submit to

21 and pass an alcohol or substance abuse test before em22 ployment by the employer; or

23 ‘‘(2) an employee, including managerial person24 nel, to submit to and pass an alcohol or substance

25 abuse test—
53

•S 1237 RS

1 ‘‘(A) on a for-cause basis or where the em2 ployer has reasonable suspicion to believe that

3 such employee is using or is under the influence

4 of alcohol or a controlled substance;

5 ‘‘(B) where such test is administered as

6 part of a scheduled medical examination;

7 ‘‘(C) in the case of an accident or incident,

8 involving the actual or potential loss of human

9 life, bodily injury, or property damage;

10 ‘‘(D) during the participation of an em11 ployee in an alcohol or substance abuse treat12 ment program, and for a reasonable period of

13 time (not to exceed 5 years) after the conclusion

14 of such program; or

15 ‘‘(E) on a random selection basis in work

16 units, locations, or facilities.

17 ‘‘(d) CONSTRUCTION.—Nothing in this section shall be

18 construed to require an employer to establish an alcohol and

19 substance abuse testing program for applicants or employ20 ees or make employment decisions based on such test results.

21 ‘‘(e) PREEMPTION.—The provisions of this section

22 shall not preempt any provision of State law.

23 ‘‘(f) INVESTIGATIONS.—The Secretary is authorized to

24 conduct testing of employees (including managerial person25 nel) of an employer for use of alcohol or controlled sub-
54

•S 1237 RS

1 stances during any investigations of a work-related fatality

2 or serious injury.’’.

3 SEC. 15. CONSULTATION ALTERNATIVES.

4 Subsection (a) of section 9 (29 U.S.C. 658(a)) is

5 amended to read as follows:

6 ‘‘(a)(1) Nothing in this Act shall be construed as pro7 hibiting the Secretary or the authorized representative of

8 the Secretary from providing technical or compliance as9 sistance to an employer in correcting a violation discovered

10 during an inspection or investigation under this Act with11 out issuing a citation.

12 ‘‘(2) Except as provided in paragraph (3), if, upon

13 an inspection or investigation, the Secretary or an author14 ized representative of the Secretary believes that an em15 ployer has violated a requirement of section 5, of any regu16 lation, rule, or order promulgated pursuant to section 6,

17 or of any regulations prescribed pursuant to this Act, the

18 Secretary may with reasonable promptness issue a citation

19 to the employer. Each citation shall be in writing and shall

20 describe with particularity the nature of a violation, in21 cluding a reference to the provision of the Act, regulation,

22 rule, or order alleged to have been violated. The citation

23 shall fix a reasonable time for the abatement of the viola24 tion.
55

•S 1237 RS

1 ‘‘(3) The Secretary or the authorized representative of

2 the Secretary—

3 ‘‘(A) may issue a warning in lieu of a citation

4 with respect to a violation that has no significant re5 lationship to employee safety or health; and

6 ‘‘(B) may issue a warning in lieu of a citation

7 in cases in which an employer in good faith acts

8 promptly to abate a violation if the violation is not

9 a willful or repeated violation.’’.