I
106TH CONGRESS
1ST SESSION
H. R. 1427
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 HOUSE OF REPRESENTATIVES
APRIL 15, 1999
Mr. TALENT (for himself, Mr. STENHOLM, Mr. PAUL, Mr. GOODE, Mr.
HUNTER, Mr. HAYWORTH, Ms. PRYCE of Ohio, Mr. CUNNINGHAM, Mr.
NORWOOD, Mr. RYUN of Kansas, Mr. BARRETT of Nebraska, Mr. PE-
TERSON of Pennsylvania, and Mr. HILLEARY) introduced the following
bill; which was referred to the Committee on Education and the Work-
force
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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCE.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Safety Advancement for Employees Act of 1999’’ or the
‘‘SAFE Act’’.
(b) REFERENCE.—Whenever in this Act an amend-
ment or repeal is expressed in terms of an amendment
to, or repeal of, a section or other provision, the reference
shall be considered to be made to a section or other provi-
sion of the Occupational Safety and Health Act of 1970
(29 U.S.C. 651 et seq.).
SEC. 2. PURPOSE.
Section 2(b) (29 U.S.C. 651(b)) is amended—
(1) in paragraph (13), by striking the period
and inserting ‘‘; and’’; and
(2) by adding at the end the following:
‘‘(14) by increasing the joint cooperation of em-
ployers, employees, and the Secretary of Labor in
the effort to ensure safe and healthful working con-
ditions for employees.’’.
SEC. 3. EMPLOYEE AND EMPLOYER PARTICIPATION PRO-
GRAMS.
Section 4 (29 U.S.C. 653) is amended by adding at
the end the following:
‘‘(c)(1) In order to further carry out the purpose of
this Act to encourage employers and employees in their
efforts to reduce occupational safety and health hazards,
employers may establish employer and employee participa-
tion programs which exist for the sole purpose of address-
ing safe and healthful working conditions.
‘‘(2) An entity created under a program described in
paragraph (1) shall not constitute a labor organization for
purposes of section 8(a)(2) of the National Labor Rela-
tions Act (29 U.S.C. 158(a)(2)) or a representative for
purposes of sections 1 and 2 of the Railway Labor Act
(45 U.S.C. 151 and 151a).
‘‘(3) Nothing in this subsection shall be construed to
affect employer obligations under section 8(a)(5) of the
National Labor Relations Act (29 U.S.C. 158(a)(5)) to
deal with a certified or recognized employee representative
with respect to health and safety matters to the extent
otherwise required by law.’’.
SEC. 4. ESTABLISHMENT OF SPECIAL ADVISORY COM-
MITTEE.
Section 7 (29 U.S.C. 656) is amended by adding at
the end the following:
‘‘(d)(1) Not later than 6 months after the date of
enactment of this subsection, the Secretary shall establish
an advisory committee (pursuant to the Federal Advisory
Committee Act (5 U.S.C. App)) to carry out the duties
described in paragraph (3).
‘‘(2) The advisory committee shall be composed of—
‘‘(A) 3 members who are employees;
‘‘(B) 3 members who are employers;
‘‘(C) 2 members who are members of the gen-
eral public; and
‘‘(D) 1 member who is a State official from a
State plan State.
Each member of the advisory committee shall have exper-
tise in workplace safety and health as demonstrated by
the educational background of the member.
‘‘(3) The advisory committee shall advise and make
recommendations to the Secretary with respect to the es-
tablishment and implementation of a consultation services
program under section 8A.’’.
SEC. 5. THIRD PARTY CONSULTATION SERVICES PROGRAM.
The Act (29 U.S.C. 651 et seq.) is amended by in-
serting after section 8 the following:
‘‘SEC. 8A. THIRD PARTY CONSULTATION SERVICES PRO-
GRAM.
‘‘(a) PURPOSE.—Recognizing that—
‘‘(1) employee safety is of paramount concern;
‘‘(2) employers are overburdened by regulations
and are unable to read through, understand and ef-
fectively comply with the voluminous requirements of
this Act; and
‘‘(3) the Secretary is unable to individually sat-
isfy the compliance needs of each employer and em-
ployee within its jurisdiction;
it is the purpose of this section to encourage employers
to conduct voluntary safety and health audits using the
expertise of qualified safety and health consultants and
to proactively seek individualized solutions to workplace
safety and health concerns.
‘‘(b) ESTABLISHMENT OF PROGRAM.—
‘‘(1) IN GENERAL.—Not later than 18 months
after the date of enactment of this section, the Sec-
retary, in consultation with the advisory committee
established under section 7(d), shall establish and
implement, by regulation, a program that qualifies
individuals to provide consultation services to em-
ployers to assist employers in the identification and
correction of safety and health hazards in the work-
places of employers.
‘‘(2) ELIGIBILITY.—The following individuals
shall be eligible to be qualified under the program
under paragraph (1) as certified safety and health
consultants:
‘‘(A) An individual who is licensed by a
State authority as a physician, industrial hy-
gienist, professional engineer, safety engineer,
safety professional, or occupational nurse.
‘‘(B) An individual who has been employed
as an inspector for a State plan State or as a
Federal occupational safety and health inspec-
tor for not less than a 5-year period.
‘‘(C) An individual who is qualified in an
occupational health or safety field by an organi-
zation whose program has been accredited by a
nationally recognized private accreditation orga-
nization or by the Secretary.
‘‘(D) Other individuals determined to be
qualified by the Secretary.
‘‘(3) GEOGRAPHICAL SCOPE OF CONSULTATION
SERVICES.—A consultant qualified under the pro-
gram under paragraph (1) may provide consultation
services in any State.
‘‘(4) LIMITATION
BASED
ON
EXPERTISE.—A
consultant qualified under the program under para-
graph (1) may only provide consultation services to
an employer with respect to a worksite if the work
performed at that worksite coincides with the par-
ticular expertise of the individual.
‘‘(c) SAFETY AND HEALTH REGISTRY.—The Sec-
retary shall develop and maintain a registry that includes
all consultants that are qualified under the program under
subsection (b)(1) to provide the consultation services de-
scribed in subsection (b) and shall publish and make such
registry readily available to the general public.
‘‘(d) DISCIPLINARY ACTIONS.—
‘‘(1) IN GENERAL.—The Secretary may revoke
the status of an individual qualified under subsection
(b) if the Secretary determines that the individual—
‘‘(A) has failed to meet the requirements
of the program; or
‘‘(B) has committed malfeasance, gross
negligence, or fraud in connection with any con-
sultation services provided by the qualified indi-
vidual.
‘‘(e) CONSULTATION SERVICES.—
‘‘(1) SCOPE OF CONSULTATION SERVICES.—The
consultation services described in subsection (b), and
provided by an individual qualified under the pro-
gram, shall include an evaluation of the workplace of
an employer to determine if the employer is in com-
pliance with the requirements of this Act, including
any regulations promulgated pursuant to this Act.
‘‘(2) CONSULTATION REPORT.—Not later than
10 business days after an individual qualified under
the program provides the consultation services de-
scribed in subsection (b) to an employer, the indi-
vidual shall prepare and submit a written report to
the employer that includes an identification of any
violations of this Act and requirements with respect
to corrective measures the employer needs to carry
out in order for the workplace of the employer to be
in compliance with the requirements of this Act.
‘‘(3) REINSPECTION.—Not later than 30 days
after an individual qualified under the program sub-
mits a report to an employer under paragraph (2),
or on a date agreed on by the individual and the em-
ployer, the individual shall reinspect the workplace
of the employer to verify that any occupational safe-
ty or health violations identified in the report have
been corrected and the workplace of the employer is
in compliance with this Act. If, after such reinspec-
tion, the individual determines that the workplace is
in compliance with the requirements of this Act, the
individual shall provide the employer a declaration of
compliance.
‘‘(4) GUIDELINES.—The Secretary, in consulta-
tion with an advisory committee established in sec-
tion 7(d), shall develop model guidelines for use in
evaluating a workplace under paragraph (1).
‘‘(f) ACCESS TO RECORDS.—Any records relating to
consultation services (as described in subsection (b) pro-
vided by an individual qualified under the program shall
not be admissible in a court of law or administrative pro-
ceeding against the employer except that such records may
be used as evidence for purposes of a disciplinary action
under subsection (d).
‘‘(g) EXEMPTION.—
‘‘(1) IN GENERAL.—If an employer enters into
a contract with an individual qualified under the
program, to provide consultation services described
in subsection (b), and receives a declaration of com-
pliance under subsection (e)(3), the employer shall
be exempt from the assessment of any civil penalty
under section 17 for a period of 2 years after the
date the employer receives the declaration.
‘‘(2) EXCEPTIONS.—Paragraph (1) shall not
apply—
‘‘(A) if the employer involved has not made
a good faith effort to remain in compliance as
required under the declaration of compliance; or
‘‘(B) to the extent that there has been a
fundamental change in the hazards of the work-
place.
‘‘(h) DEFINITION.—In this section, the term ‘pro-
gram’ means the program established by the Secretary
under subsection (b).
‘‘(i) RIGHT TO INSPECT.—Nothing in this section
shall be construed to affect the rights of the Secretary to
inspect and investigate worksites covered by a certificate
of compliance.
‘‘(j) NON-FIXED WORK SITES.—With respect to em-
ployer worksites that do not have a fixed location, a certifi-
cate of compliance shall only apply to that worksite which
satisfies the criteria under this section and such certificate
shall not be portable to any other worksite. This section
shall not apply to service establishments that utilize essen-
tially the same work equipment at each non-fixed work-
site.’’.
SEC. 6. CONTINUING EDUCATION AND PROFESSIONAL CER-
TIFICATION FOR CERTAIN OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION PER-
SONNEL.
Section 8 (29 U.S.C. 657) is amended by adding at
the end the following:
‘‘(h) Any Federal employee responsible for enforcing
this Act shall (not later than 2 years after the date of
enactment of this subsection or 2 years after the initial
employment of the employee) meet the eligibility require-
ments prescribed under subsection (b)(2) of section 8A.
‘‘(i) The Secretary shall ensure that any Federal em-
ployee responsible for enforcing this Act who carries out
inspections or investigations under this section, receive
professional education and training at least every 5 years
as prescribed by the Secretary.’’.
SEC. 7. EXPANDED INSPECTION METHODS.
(a) PURPOSE.—It is the purpose of this section to
empower the Secretary of Labor to achieve increased em-
ployer compliance by using, at the Secretary’s discretion,
more efficient and effective means for conducting inspec-
tions.
(b) GENERAL.—Section 8(f) of the Act (29 U.S.C.
657(f) is amended by adding at the end the following:
‘‘(3) The Secretary or an authorized representative
of the Secretary may, as a method of investigating an al-
leged violation or danger under this subsection, attempt,
if feasible, to contact an employer by telephone, facsimile,
or other appropriate methods to determine whether—
‘‘(A) the employer has taken corrective actions
with respect to the alleged violation or danger; or
‘‘(B) there are reasonable grounds to believe
that a hazard exists.
‘‘(4) The Secretary is not required to conduct an in-
spection under this subsection if the Secretary determines
that a request for an inspection was made for reasons
other than the safety and health of the employees of an
employer or that the employees of an employer are not
at risk.’’.
SEC. 8. WORKSITE-SPECIFIC COMPLIANCE METHODS.
(a) Section 9 (29 U.S.C. 658) is amended by adding
at the end the following:
‘‘(d) A citation issued under subsection (a) to an em-
ployer who violates section 5, any standard, rule, or order
promulgated pursuant to section 6, or any other regulation
promulgated under this Act shall be vacated if such em-
ployer demonstrates that the employees of such employer
were protected by alternative methods that are equally or
more protective of the safety and health of the employees
than the methods required by such standard, rule, order,
or regulation in the factual circumstances underlying the
citation.
‘‘(e) Subsection (d) shall not be construed to elimi-
nate or modify other defenses that may exist to any cita-
tion.’’.
SEC. 9. REDUCED PENALTIES FOR PAPERWORK VIOLA-
TIONS.
Section 17(i) (29 U.S.C. 666) is amended to read as
follows:
‘‘(i) Any employer who violates any of the posting or
paperwork requirements, other than fraudulent reporting
requirement deficiencies, prescribed under this Act shall
not be assessed a civil penalty for such a violation unless
the Secretary determines that the employer has violated
subsection (a) or (d) with respect to the posting or paper-
work requirements.’’.
SEC. 10. REVIEW BY THE COMMISSION.
Section 17(j) (29 U.S.C. 666) is amended to read as
follows:
‘‘(j) The Commission shall have authority to assess
all civil penalties under this section. In assessing a penalty
under this section for a violation, the Commission shall
give due consideration to the appropriateness of the pen-
alty with respect to—
‘‘(1) the size of an employer;
‘‘(2) the number of employees exposed to the
violation;
‘‘(3) the likely severity of any injuries directly
resulting from the violation;
‘‘(4) the probability that the violation could re-
sult in injury or illness;
‘‘(5) the good faith of an employer in correcting
the violation after the violation has been identified;
‘‘(6) the history of previous violations by an em-
ployer; and
‘‘(7) whether the violation is the sole result of
the failure of an employer to meet a requirement
under this Act, or prescribed by regulation, with re-
spect to the posting of notices, the preparation or
maintenance of occupational safety and health
records, or the preparation, maintenance, or submis-
sion of any written information.’’.
SEC. 11. TECHNICAL ASSISTANCE PROGRAM.
(a) IN GENERAL.—Section 21(c) (29 U.S.C. 670(c))
is amended—
(1) by striking ‘‘(c) The’’ and inserting ‘‘(c)(1)
The’’;
(2) by striking ‘‘(1) provide’’ and inserting ‘‘(A)
provide’’;
(3) by striking ‘‘(2) consult’’ and inserting ‘‘(B)
consult’’; and
(4) by adding at the end the following:
‘‘(2)(A) The Secretary shall, through the authority
granted under section 7(c) and paragraph (1), enter into
cooperative agreements with States for the provision of
consultation services by such States to employers con-
cerning the provision of safe and healthful working condi-
tions.
‘‘(B)(i) Except as provided in clause (ii), the Sec-
retary shall reimburse a State that enters into a coopera-
tive agreement under subparagraph (A) in an amount that
equals 90 percent of the costs incurred by the State for
the provision of consultation services under such agree-
ment.
‘‘(5) Not later than 90 days after the termination of
the program under paragraph (1), the Secretary shall pre-
pare and submit a report to the appropriate committees
of Congress that contains an evaluation of the implemen-
tation of the pilot program.’’.
SEC. 12. VOLUNTARY PROTECTION PROGRAMS.
(a) COOPERATIVE AGREEMENTS.—The Secretary of
Labor shall establish cooperative agreements with employ-
ers to encourage the establishment of comprehensive safe-
ty and health management systems that include—
(1) requirements for systematic assessment of
hazards;
(2) comprehensive hazard prevention, mitiga-
tion, and control programs;
(3) active and meaningful management and em-
ployee participation in the voluntary program de-
scribed in subsection (b); and
(4) employee safety and health training.
(b) VOLUNTARY PROTECTION PROGRAM.—
(1) IN GENERAL.—The Secretary of Labor shall
establish and carry out a voluntary protection pro-
gram (consistent with subsection (a)) to encourage
and recognize the achievement of excellence in both
the technical and managerial protection of employees
from occupational hazards. The Secretary of Labor
shall encourage small businesses (as the term is de-
fined by the Administrator of the Small Business
Administration) to participate in the voluntary pro-
tection program by carrying out outreach and assist-
ance initiatives and developing program require-
ments that address the needs of small businesses.
(2) PROGRAM
REQUIREMENT.—The voluntary
protection program shall include the following:
(A) APPLICATION.—Employers who volun-
teer under the program shall be required to
submit an application to the Secretary of Labor
demonstrating that the worksite with respect to
which the application is made meets such re-
quirements as the Secretary of Labor may re-
quire for participation in the program.
(B) ONSITE
EVALUATIONS.—There shall
be onsite evaluations by representatives of the
Secretary of Labor to ensure a high level of
protection of employees. The onsite visits shall
not result in enforcement of citations under the
Occupational Safety and Health Act of 1970
(29 U.S.C. 651 et seq.).
(C) INFORMATION.—Employers who are
approved by the Secretary of Labor for partici-
pation in the program shall assure the Sec-
retary of Labor that information about the
safety and health program of the employers
shall be made readily available to the Secretary
of Labor to share with employees.
(D) REEVALUATIONS.—Periodic reevalua-
tions by the Secretary of Labor of the employ-
ers shall be required for continued participation
in the program.
(3) EXEMPTIONS.—A site with respect to which
a program has been approved shall, during partici-
pation in the program be exempt from inspections or
investigations and certain paperwork requirements
to be determined by the Secretary of Labor, except
that this paragraph shall not apply to inspections or
investigations arising from employee complaints, fa-
talities, catastrophes, or significant toxic releases.
(4) INCREASED
SMALL
BUSINESS
PARTICIPA-
TION.—The Secretary of Labor shall establish and
implement, by regulation, a program to increase par-
ticipation by small businesses (as the term is defined
by the Administrator of the Small Business Admin-
istration) in the voluntary protection program
through outreach and assistance initiatives and de-
veloping program requirements that address the
needs of small businesses.
SEC. 13. PREVENTION OF ALCOHOL AND SUBSTANCE
ABUSE.
The Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.) is amended—
(1) by striking sections 29, 30, and 31;
(2) by redesignating sections 32, 33, and 34 as
sections 30, 31, and 32, respectively; and
(3) by inserting after section 28 (29 U.S.C.
676) the following:
‘‘SEC. 29. ALCOHOL AND SUBSTANCE ABUSE TESTING.
‘‘(a) PROGRAM PURPOSE.—In order to secure a safe
workplace, employers may establish and carry out an alco-
hol and substance abuse testing program in accordance
with subsection (b).
‘‘(b) FEDERAL GUIDELINES.—An alcohol and sub-
stance abuse testing program described in subsection (a)
shall meet the following requirements:
‘‘(1) SUBSTANCE ABUSE.—A substance abuse
testing program shall permit the use of an onsite or
offsite urine screening or other recognized screening
methods, so long as the confirmation tests are per-
formed in accordance with the mandatory guidelines
for Federal workplace testing programs published by
the Secretary of Health and Human Services on
April 11, 1988, at section 11979 of title 53, Code
of Federal Regulations (including any amendments
to such guidelines), in a lab that is subject to the
requirements of subpart B of such mandatory guide-
lines.
‘‘(2) ALCOHOL.—The alcohol testing component
of the program shall take the form of alcohol breath
analysis and shall conform to any guidelines devel-
oped by the Secretary of Transportation for alcohol
testing of mass transit employees under the Depart-
ment of Transportation and Related Agencies Ap-
propriations Act, 1992.
‘‘(c) TEST REQUIREMENTS.—This section shall not
be construed to prohibit an employer from requiring—
‘‘(1) an applicant for employment to submit to
and pass an alcohol or substance abuse test before
employment by the employer; or
‘‘(2) an employee, including managerial per-
sonnel, to submit to and pass an alcohol or sub-
stance abuse test—
‘‘(A) on a for-cause basis or where the em-
ployer has reasonable suspicion to believe that
such employee is using or is under the influence
of alcohol or a controlled substance;
‘‘(B) where such test is administered as
part of a scheduled medical examination;
‘‘(C) in the case of an accident or incident,
involving the actual or potential loss of human
life, bodily injury, or property damage;
‘‘(D) during the participation of an em-
ployee in an alcohol or substance abuse treat-
ment program, and for a reasonable period of
time (not to exceed 5 years) after the conclu-
sion of such program; or
‘‘(E) on a random selection basis in work
units, locations, or facilities.
‘‘(d) CONSTRUCTION.—Nothing in this section shall
be construed to require an employer to establish an alcohol
and substance abuse testing program for applicants or em-
ployees or make employment decisions based on such test
results.
‘‘(e) PREEMPTION.—The provisions of this section
shall preempt any provision of State law to the extent that
such State law is inconsistent with this section.
‘‘(f) INVESTIGATIONS.—The Secretary is authorized
to conduct testing of employees (including managerial per-
sonnel) of an employer for use of alcohol or controlled sub-
stances during any investigations of a work-related fatality
or serious injury.’’.
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