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) ESTABLISHMENT OF PROGRAM.—
‘‘(1) IN GENERAL.—Not later than 12 months
after the date of enactment of this section, the Sec-
retary shall establish and implement, by regulation,
a program that qualifies individuals to provide con-
sultation services to employers to assist employers in
the identification and correction of safety and health
hazards in the workplaces of employers.
‘‘(2) ELIGIBILITY.—Each of the following indi-
viduals shall be eligible to be qualified under the
program:
‘‘(A) An individual licensed by a State au-
thority as a physician, industrial hygienist, pro-
fessional engineer, safety engineer, safety pro-
fessional, 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 qualified in an occupa-
tional health or safety field by an organization
whose program has been accredited by a nation-
ally recognized private accreditation organiza-
tion or by the Secretary.
‘‘(D) Other individuals determined to be
qualified by the Secretary.
‘‘(3) GEOGRAPHICAL SCOPE OF CONSULTATION
SERVICES.—An individual qualified under the pro-
gram may provide consultation services in any State.
‘‘(b) SAFETY AND HEALTH REGISTRY.—The Sec-
retary shall develop and maintain a registry that includes
all individuals that are qualified under the program to pro-
vide the consultation services described in subsection (a)
and shall publish and make such registry readily available
to the general public.
‘‘(c) DISCIPLINARY ACTIONS.—
‘‘(1) IN GENERAL.—The Secretary may revoke
the status of an individual qualified under subsection
(a) 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.
‘‘(d) CONSULTATION SERVICES.—
‘‘(1) SCOPE OF CONSULTATION SERVICES.—
‘‘(A) IN GENERAL.—The consultation serv-
ices described in subsection (a), and provided
by an individual qualified under the program,
shall include an evaluation of the workplace of
an employer to determine if the employer is in
compliance with the requirements of this Act,
including any regulations promulgated pursuant
to this Act.
‘‘(B) NON-FIXED WORK SITES.—With re-
spect to the employees of an employer who do
not work at a fixed site, the consultation serv-
ices described in subsection (a), and provided
by an individual qualified under the program,
shall include an evaluation of the safety and
health program of the employer to determine if
the employer is in compliance with the require-
ments of this Act, including any regulations
promulgated under 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 (a) to an employer, the individ-
ual shall prepare and submit a written report to the
employer that includes an identification of any viola-
tions 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).
‘‘(e) ACCESS TO RECORDS.—Any records relating to
consultation services (as described in subsection (a)) 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 (c).
‘‘(f) 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 (a), and receives a declaration of com-
pliance under subsection (d)(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.
‘‘(g) DEFINITION.—In this section, the term ‘pro-
gram’ means the program established by the Secretary
under subsection (a).’’.
SEC. 6. INDEPENDENT SCIENTIFIC PEER REVIEW.
Section 6(b) (29 U.S.C. 655(b)(1)) is amended—
(1) by striking: ‘‘(4) Within’’ and inserting:
‘‘(4)(A) Within’’; and
(2) by adding at the end the following:
‘‘(B)(i) Prior to issuing a final standard under this
paragraph, the Secretary shall submit the draft final
standard and a copy of the administrative record to the
National Academy of Sciences for review in accordance
with clause (ii).
‘‘(ii)(I) The National Academy of Sciences shall ap-
point an independent Scientific Review Committee.
‘‘(II) The Scientific Review Committee shall conduct
an independent review of the draft final standard and the
scientific literature and make written recommendations
with respect to the draft final standard to the Secretary,
istration (including any regional director, area director,
supervisor, or inspector) a quota with respect to the num-
ber of inspections conducted, the number of citations is-
sued, or the amount of penalties collected, in accordance
with this Act.
‘‘(e) Not later than 12 months after the date of en-
actment of this subsection and annually thereafter, the
Secretary shall report on the number of employers that
are inspected under this Act and determined to be in com-
pliance with the requirements prescribed under this Act.’’.
SEC. 9. PERSONAL RESPONSIBILITIES.
(a) THE USE OF ALTERNATIVE METHODS AS AN AF-
FIRMATIVE DEFENSE.—Section 9 (29 U.S.C. 658), as
amended by section 8, is further amended by adding at
the end the following:
‘‘(f) 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.
‘‘(g) Subsection (f) shall not be construed to elimi-
nate or modify other defenses that may exist to any cita-
tion.’’.
(b) EMPLOYEE RESPONSIBILITY.—The Occupational
Safety and Health Act of 1970 (29 U.S.C. 651 et seq.)
is amended by inserting after section 10 the following:
‘‘SEC. 10A. EMPLOYEE RESPONSIBILITY.
‘‘(a) IN GENERAL.—Notwithstanding any other pro-
vision of this Act, an employee who, with respect to per-
sonal protective equipment, willfully violates any require-
ment of section 5 or any standard, rule, or order promul-
gated pursuant to section 6, or any regulation prescribed
pursuant to this Act, may be assessed a civil penalty, as
determined by the Secretary, for each violation.
‘‘(b) CITATIONS.—If, upon inspection and investiga-
tion, the Secretary or the authorized representative of the
Secretary believes that an employee of an employer has,
with respect to personal protective equipment, violated any
requirement of section 5 or any standard, rule, or order
promulgated pursuant to section 6, or any regulation pre-
scribed pursuant to this Act, the Secretary shall within
60 days issue a citation to the employee. Each citation
shall be in writing and shall describe with particularity
the nature of the violation, including a reference to the
provision of this Act, standard, rule, regulation, or order
alleged to have been violated. No citation may be issued
under this section after the expiration of 6 months follow-
ing the occurrence of any violation.
‘‘(c) NOTIFICATION.—The Secretary shall notify the
employee by certified mail of the citation and proposed
penalty and that the employee has 15 working days within
which to notify the Secretary that the employee wishes to
contest the citation or penalty. If no notice is filed by the
employee within 15 working days, the citation and the
penalty, as proposed, shall be deemed a final order of the
Commission and not subject to review by any court or
agency.
‘‘(d) CONTESTING OF CITATION.—If the employee
notifies the Secretary that the employee intends to contest
the citation or proposed penalty, the Secretary shall imme-
diately advise the Commission of such notification, and the
Commission shall afford an opportunity for a hearing (in
accordance section 554 of title 5, United States Code).
The Commission shall after the hearing issue an order,
based on findings of fact, affirming, modifying, or
vacating the Secretary’s citation or proposed penalty, or
directing other appropriate relief. Such order shall become
final 30 days after issuance of the order.’’.
SEC. 10. REDUCED PENALTIES FOR PAPERWORK VIOLA-
TIONS.
Section 17 (29 U.S.C. 666) is amended by striking
subsection (i) and inserting the following:
‘‘(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. 11. REVIEW BY THE COMMISSION.
Section 17 (29 U.S.C. 666) is amended by striking
subsection (j) and inserting the following:
‘‘(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. 12. 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 concern-
ing the provision of safe and healthful working conditions.
‘‘(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.
‘‘(ii) A State shall be reimbursed by the Secretary
for 90 percent of the costs incurred by the State for the
provision of—
‘‘(I) training approved by the Secretary for
State personnel operating under a cooperative agree-
ment; and
‘‘(II) specified out-of-State travel expenses in-
curred by such personnel.
‘‘(iii) A reimbursement paid to a State under this
subparagraph shall be limited to costs incurred by such
State for the provision of consultation services under this
paragraph and the costs described in clause (ii).
‘‘(C) Notwithstanding any other provisions of law,
not less than 15 percent of the total amount of funds ap-
propriated for the Occupational Safety and Health Admin-
istration for a fiscal year shall be used for education, con-
sultation, and outreach efforts.
‘‘(D) A State may not require that an employer pay
a fee in order to participate in any program operated by
the State under this paragraph.’’.
(b) PILOT PROGRAM.—Section 21 (29 U.S.C. 670)
is amended by adding at the end the following:
‘‘(d)(1) Not later than 90 days after the date of en-
actment of this subsection, the Secretary shall establish
and carry out a pilot program in 3 States to provide expe-
dited consultation services, with respect to the provision
of safe and healthful working conditions, to employers that
are small businesses (as the term is defined by the Admin-
istrator of the Small Business Administration). The Sec-
retary shall carry out the program for a period not to ex-
ceed 2 years.
‘‘(2) The Secretary shall provide consultation services
under paragraph (1) not later than 4 weeks after the date
on which the Secretary receives a request from an em-
ployer.
‘‘(3) The Secretary may impose a nominal fee to an
employer requesting consultation services under para-
graph (1). The fee shall be in an amount determined by
the Secretary. Employers paying a fee shall receive prior-
ity consultation services by the Secretary.
‘‘(4) In lieu of issuing a citation under section 9 to
an employer for a violation found by the Secretary during
(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.
SEC. 14. 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 person-
nel, to submit to and pass an alcohol or substance
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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