I 

111TH CONGRESS 

2D SESSION H. R. 4864 

To require a heightened review process by the Secretary of Labor of State 

occupational safety and health plans, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 16, 2010 

Ms. TITUS (for herself and Ms. WOOLSEY) introduced the following bill; which 

was referred to the Committee on Education and Labor 

A BILL 

To require a heightened review process by the Secretary 

of Labor of State occupational safety and health plans, 

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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Ensuring Worker Safe5 ty Act’’. 

6 SEC. 2. REVIEW OF STATE OCCUPATIONAL SAFETY AND 

7 HEALTH PLANS. 

8 Section 18 of the Occupational Safety and Health Act 

9 (29 U.S.C. 668) is amended— 


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1 (1) by amending subsection (f) to read as fol2 lows: 

3 ‘‘(f)(1) The Secretary shall, on the basis of reports 

4 submitted by the State agency and the Secretary’s own 

5 inspections, make a continuing evaluation of the manner 

6 in which each State that has a plan approved under this 

7 section is carrying out such plan. Such evaluation shall 

8 include an assessment of whether the State continues to 

9 meet the requirements of subsection (c) of this section and 

10 any other criteria or indices of effectiveness specified by 

11 the Secretary in regulations. Whenever the Secretary 

12 finds, on the basis of such evaluation, that in the adminis13 tration of the State plan there is a failure to comply sub14 stantially with any provision of the State plan (or any as15 surance contained therein), the Secretary shall make an 

16 initial determination of whether the failure is of such a 

17 nature that the plan should be withdrawn or whether the 

18 failure is of such a nature that the State should be given 

19 the opportunity to remedy the deficiencies, and provide no20 tice of the Secretary’s findings and initial determination. 

21 ‘‘(2) If the Secretary makes an initial determination 

22 to reassert and exercise concurrent enforcement authority 

23 while the State is given an opportunity to remedy the defi24 ciencies, the Secretary shall afford the State an oppor25 tunity for a public hearing within 15 days of such request, 


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1 provided that such request is made not later than 10 days 

2 after Secretary’s notice to the State. The Secretary shall 

3 review and consider the testimony, evidence, or written 

4 comments, and not later than 30 days following such hear5 ing, make a determination to affirm, reverse, or modify 

6 the Secretary’s initial determination to reassert and exer7 cise concurrent enforcement authority under sections 8, 9, 

8 10, 13, and 17 with respect to standards promulgated 

9 under section 6 and obligations under section 5(a). Fol10 lowing such a determination by the Secretary, or in the 

11 event that the State does not request a hearing within the 

12 time frame set forth in this paragraph, the Secretary may 

13 reassert and exercise such concurrent enforcement author14 ity, while a final determination is pending under para15 graph (3) or until the Secretary has determined that the 

16 State has remedied the deficiencies as provided under 

17 paragraph (4). Such determination shall be published in 

18 the Federal Register. The procedures set forth in section 

19 18(g) shall not apply to a determination by the Secretary 

20 to reassert and exercise such concurrent enforcement au21 thority. 

22 ‘‘(3) If the Secretary makes an initial determination 

23 that the plan should be withdrawn, the Secretary shall 

24 provide due notice and the opportunity for a hearing. If 

25 based on the evaluation, comments, and evidence, the SecVerDate Nov 24 2008 03:42 Mar 17, 2010 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4864.IH H4864

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1 retary makes a final determination that there is a failure 

2 to comply substantially with any provision of the State 

3 plan (or any assurance contained therein), he shall notify 

4 the State agency of the withdrawal of approval of such 

5 plan and upon receipt of such notice such plan shall cease 

6 to be in effect, but the State may retain jurisdiction in 

7 any case commenced before the withdrawal of the plan in 

8 order to enforce standards under the plan whenever the 

9 issues involved do not relate to the reasons for the with10 drawal of the plan. 

11 ‘‘(4) If the Secretary makes a determination that the 

12 State should be provided the opportunity to remedy the 

13 deficiencies, the Secretary shall provide the State an op14 portunity to respond to the Secretary’s findings and the 

15 opportunity to remedy such deficiencies within a time pe16 riod established by the Secretary, not to exceed 1 year. 

17 The Secretary may extend and revise the time period to 

18 remedy such deficiencies, if the State’s legislature is not 

19 in session during this 1 year time period, or if the State 

20 demonstrates that it is not feasible to correct the defi21 ciencies in the time period set by the Secretary, and the 

22 State has a plan to correct the deficiencies within a rea23 sonable time period. If the Secretary finds that the State 

24 agency has failed to remedy such deficiencies within the 

25 time period specified by the Secretary and that the State 


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1 plan continues to fail to comply substantially with a provi2 sion of the State plan, the Secretary shall withdraw the 

3 State plan as provided for in paragraph (3).’’; and 

4 (2) by adding at the end the following new sub5 section: 

6 ‘‘(i) Not later than 18 months after the date of enact7 ment of this subsection, and every 5 years thereafter, the 

8 Comptroller General shall complete and issue a review of 

9 the effectiveness of State plans to develop and enforce 

10 safety and health standards to determine if they are at 

11 least as effective as the Federal program and to evaluate 

12 whether the Secretary’s oversight of State plans is effec13 tive. The Comptroller General’s evaluation shall assess— 

14 ‘‘(1) the effectiveness of the Secretary’s over15 sight of State plans, including the indices of effec16 tiveness used by the Secretary; 

17 ‘‘(2) whether the Secretary’s investigations in 

18 response to Complaints About State Plan Adminis19 tration (CASPA) are adequate, whether significant 

20 policy issues have been identified by headquarters 

21 and corrective actions are fully implemented by each 

22 State; 

23 ‘‘(3) whether the formula for the distribution of 

24 funds described in section 23(g) to State programs 

25 is fair and adequate; 


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1 ‘‘(4) whether State plans are as effective as the 

2 Federal program in preventing occupational injuries, 

3 illnesses and deaths, and investigating discrimina4 tion complaints, through an evaluation of at least 20 

5 percent of approved State plans, and which shall 

6 cover— 

7 ‘‘(A) enforcement effectiveness, including 

8 handling of fatalities, serious incidents and 

9 complaints, compliance with inspection proce10 dures, hazard recognition, verification of abate11 ment, violation classification, citation and pen12 alty issuance, including appropriate use of will13 ful and repeat citations, and employee involve14 ment; 

15 ‘‘(B) inspections, the number of pro16 grammed health and safety inspections at pri17 vate and public sector establishments, and 

18 whether the State targets the highest hazard 

19 private sector work sites and facilities in that 

20 State; 

21 ‘‘(C) budget and staffing, including wheth22 er the State is providing adequate budget re23 sources to hire, train and retain sufficient num24 bers of qualified staff, including timely filling of 

25 vacancies; 


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1 ‘‘(D) administrative review, including the 

2 quality of decisions, consistency with Federal 

3 precedence, transparency of proceedings, deci4 sions and records are available to the public, 

5 adequacy of State defense, and whether the 

6 State appropriately appeals adverse decisions; 

7 ‘‘(E) antidiscrimination, including whether 

8 discrimination complaints are processed in a 

9 timely manner, whether supervisors and inves10 tigators are properly trained to investigate dis11 crimination complaints, whether a case file re12 view indicates merit cases are properly identi13 fied consistent with Federal policy and proce14 dure, whether employees are notified of their 

15 rights, and whether there is an effective process 

16 for employees to appeal the dismissal of a com17 plaint; 

18 ‘‘(F) program administration, including 

19 whether the State’s standards and policies are 

20 at least as effective as the Federal program and 

21 are updated in a timely manner, and whether 

22 National Emphasis Programs that are applica23 ble in such States are adopted and implemented 

24 in a manner that is at least as effective as the 

25 Federal program; 


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1 ‘‘(G) whether the State plan satisfies the 

2 requirements for approval set forth in this sec3 tion and its implementing regulations; and 

4 ‘‘(H) other such factors identified by the 

5 Comptroller General, or as requested by the 

6 Committee on Education and Labor of the 

7 House of Representatives or the Committee on 

8 Health, Education, Labor, and Pensions of the 

9 Senate.’’. 

Æ 


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