The text of the bill below is as of Jun 14, 1995 (Introduced).
HR 1834 IH
H. R. 1834
To amend the Occupational Safety and Health Act of 1970.
IN THE HOUSE OF REPRESENTATIVES
June 14, 1995
June 14, 1995
Mr. BALLENGER (for himself, Mr. BOEHNER, Mr. GOODLING, Mr. BARRETT of Nebraska, Mr. BARTLETT, Mr. BONILLA, Mr. BUNNING of Kentucky, Mr. BURR, Mr. CALVERT, Mr. CANADY of Florida, Mr. CASTLE, Mr. CHAMBLISS, Mr. CHRISTENSEN, Mr. COBLE, Mr. COOLEY, Mr. CREMEANS, Mr. CUNNINGHAM, Mr. DELAY, Mr. DOOLITTLE, Mr. EMERSON, Mr. FAWELL, Mr. FOLEY, Mr. FORBES, Mr. FUNDERBURK, Mr. GRAHAM, Mr. GREENWOOD, Mr. GUNDERSON, Mr. HANCOCK, Mr. HANSEN, Mr. HASTERT, Mr. HEFLEY, Mr. HEINEMAN, Mr. HERGER, Mr. HOEKSTRA, Mr. HUTCHINSON, Mrs. JOHNSON of Connecticut, Mr. SAM JOHNSON of Texas, Mr. JONES, Jr., Ms. KELLY, Mr. KLUG, Mr. KOLLENBERG, Mr. LINDER, Mr. MANZULLO, Mr. MCKEON, Mr. MCINTOSH, Ms. MEYERS of Kansas, Mr. MICA, Mrs. MYRICK, Mr. NORWOOD, Mr. PAXON, Mr. PETRI, Mrs. PRYCE, Mr. RIGGS, Mr. SALMON, Mr. SCARBOROUGH, Mr. SOUDER, Mr. STENHOLM, Mr. STUMP, Mr. TALENT, Mr. TAUZIN, Mr. TIAHRT, Mr. WALKER, Mr. WAMP, Mr. WELDON of Florida, Mr. WICKER, and Mr. ZELIFF) introduced the following bill; which was referred to the Committee on Economic and Educational Opportunities
To amend the Occupational Safety and Health Act of 1970.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS; REFERENCE.
- (a) SHORT TITLE- This Act may be cited as the ‘Safety and Health Improvement and Regulatory Reform Act of 1995’.
- (b) TABLE OF CONTENTS-
- Sec. 1. Short title; table of contents; reference.
- Sec. 2. Standards.
- Sec. 3. Notice of violation.
- Sec. 4. Consultation, incentives for voluntary action, and technical assistance.
- Sec. 5. Removal of barriers to voluntary safety and health activities.
- Sec. 6. Inspections.
- Sec. 7. Employer defenses.
- Sec. 8. Penalties.
- Sec. 9. Review by the Commission.
- Sec. 10. NIOSH repealed.
- Sec. 11. State Workmen’s Compensation Commission repealed.
- Sec. 12. State programs.
- Sec. 13. Discrimination.
- Sec. 14. Coverage of Federal agencies.
- Sec. 15. Federal agency safety programs.
- Sec. 16. Prevention of alcohol and substance abuse.
- Sec. 17. Mine safety and health.
- Sec. 18. Recordkeeping and reporting.
- Sec. 19. Definitions.
- Sec. 20. Miscellaneous technical amendments.
- Sec. 21. Effective date.
- (c) REFERENCE- Except as otherwise expressly provided, whenever in this Act an amendment 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 provision of the Occupational Safety and Health Act of 1970.
SEC. 2. STANDARDS.
- (a) PROMULGATION AND MODIFICATION- Section 6(b)(1) (29 U.S.C. 655(b)(1)) is amended to read as follows:
‘(1) The promulgation and modification of standards under this section shall be based upon sound scientific data in the field and on such research, demonstrations, experiments, and such other information as may be appropriate. The Secretary shall ensure an adequate record for any standard. Each standard shall be based upon the following analyses and criteria:
‘(A) A regulatory impact analysis prepared under subsection (h).
‘(B) An assessment of the risks to workers resulting from the hazard being addressed by the standard. The assessment shall be contained in a risk assessment document prepared in accordance with the principles for risk assessment and characterization prescribed in subsection (i).
‘(C) An identification of the benefits and costs of the standard conducted in accordance with subsection (k).
‘(D) A determination that the standard is needed to address a significant risk of material impairment to the health or safety of employees in each industry to which it applies and will substantially reduce that risk.
‘(E) A determination that the standard is economically and technologically feasible and practical in each industry to which it applies.
‘(F) A determination that the incremental risk reduction or other benefits of the standard justify, and are reasonably related to, the incremental costs incurred in each industry to which the standard applies.
‘(G) A determination that the standard will provide protection to workers in the most cost-effective manner and minimize employment loss due to the standard in the affected industries.
‘(H) Whenever practicable, the standard shall be expressed in terms of objective criteria and of the performance desired.’.
- (b) SEPARATE RULES FOR CERTAIN HAZARDS- Paragraph (5) of section 6(b)(5) (29 U.S.C. 655(b)(5)) is repealed.
- (c) VARIANCES- Section 6(d) (29 U.S.C. 655(d)) is amended by adding at the end the following: ‘If the Secretary has failed to approve or disapprove an application for a variance within 90 days of the filing of such application, the variance shall be deemed to have been issued as of the date of such filing unless the applicant and the Secretary agree to a longer time period.’.
- (d) REGULATORY IMPACT ANALYSIS- Section 6 (29 U.S.C. 655) is amended by adding at the end the following:
‘(h)(1) The Secretary shall prepare--
‘(A) a preliminary regulatory impact analysis, which shall be transmitted along with any proposed rule under section 6(b)(2), and
‘(B) a final regulatory impact analysis, which shall be transmitted along with a rule or determination issued under section 6(b)(4).
‘(2) Each preliminary and final regulatory impact analysis prepared under paragraph (1) shall contain the following information:
‘(A) A description of the potential benefits of the standard, including any beneficial effects that cannot be quantified in monetary terms and the identification of those likely to receive the benefits.
‘(B) An explanation of the necessity, legal authority, and reasonableness of the standard and a description of the hazard that the standard is to address.
‘(C) A description of the potential costs of the standard, including any adverse effects that cannot be quantified in monetary terms, and the identification of those likely to bear the costs.
‘(D) An analysis of any alternative approaches, including market based mechanisms, that could substantially achieve the same regulatory goal at a lower cost and an explanation of the reasons why such alternative approaches were not adopted, together with a demonstration that the standard provides for the least costly approach.
‘(E) A statement that the standard does not conflict with, or duplicate, any other standard or requirement, or the reasons why such a conflict or duplication exists.
‘(F) A statement of whether persons will be required by the standard to maintain any records which will be subject to inspection.
‘(G) An estimate of the costs to the Secretary for implementation and enforcement of the standard and of whether the Secretary can be reasonably expected to implement the standard with the current level of appropriations.’.
- (e) RISK ASSESSMENT- Section 6 (29 U.S.C. 655), as amended by subsection (d), is amended by adding at the end the following:
‘(i)(1) The principles to be applied in any assessment of risks relied upon by the Secretary in promulgating or modifying any standard are as follows:
‘(A) When discussing risk to health or safety, a risk assessment document shall contain a discussion of both relevant laboratory and relevant epidemiological data of sufficient quality which finds, or fails to find, a correlation between risks to health or safety and a potential toxin, condition, process, or activity. Where conflicts among such data appear to exist, or where animal data are used as a basis to assess human health, the risk assessment document shall, to the extent feasible and appropriate, include discussion of possible reconciliation of conflicting information, and as relevant, differences in study designs, comparative physiology, routes of exposure, bioavailability, pharmacokinetics, and any other relevant factor, including the sufficiency of basic data for review. Animal data shall be reviewed with regard to its relevancy to humans.
‘(B) Where a risk assessment document involves selection of any significant assumption, inference, or model, the document shall, to the extent feasible--
‘(i) present a representative list and explanation of plausible and alternative assumptions, inferences, or models;
‘(ii) explain the basis for any choices;
‘(iii) identify any policy or value judgments;
‘(iv) fully describe any model used in the risk assessment and make explicit the assumptions incorporated in the model; and
‘(v) indicate the extent to which any significant model has been validated by, or conflicts with, empirical data.
‘(2) Any characterization of risk relied upon by the Secretary in promulgating or modifying a standard shall, to the extent feasible, provide--
‘(A) the best estimate or estimates for the specific classes of workers which are the subject of the characterization; and
‘(B) a statement of the reasonable range of scientific uncertainties.
- In addition to such best estimate or estimates, the risk characterization may present plausible upper-bound or conservative estimates in conjunction with plausible lower bounds estimates. Where appropriate, the risk characterization may present, in lieu of a single best estimate, multiple best estimates based on assumptions, inferences, or models which are equally plausible, given current scientific understanding.
‘(3) Any characterization of risk relied upon by the Secretary in promulgating or modifying a standard shall explain the exposure scenarios used in any risk assessment, and, to the extent feasible, provide a statement of the size of the corresponding population at risk and the likelihood of such exposure scenarios.
‘(4) Any characterization of risk relied upon by the Secretary in promulgating or modifying a standard shall contain a statement that places the nature and magnitude of risks to worker health or safety in context. Such statement shall, to the extent feasible, provide comparisons with estimates of greater, lesser, and substantially equivalent risks that are familiar to and routinely encountered by the general public as well as other risks, and, where appropriate and meaningful, comparisons of those risks with other similar risks regulated by the Secretary. Such comparisons should consider relevant distinctions among risks, such as the voluntary or involuntary nature of risks and the preventability or nonpreventability of risks.
‘(A) a commenter provides the Secretary with a relevant risk assessment document or a risk characterization document, and a summary thereof, during the public comment period provided under section 6(b), and
‘(B) the risk assessment document or risk characterization document is consistent with the principles and the guidance provided under this Act,
the Secretary shall, to the extent feasible, present such summary in connection with the presentation of the Secretary’s description of the risk to health or safety of employees. Nothing in this paragraph shall be construed to limit the inclusion of any comments or material supplied by any person to the administrative record. A document may satisfy the requirements of paragraph (3) or (4) by reference to information or material otherwise available to the public if the document provides a brief summary of such information or material.
‘(j) Any recommendation or classification made by a non-United States-based entity concerning the health effects value of a substance shall not be incorporated into any standard without an opportunity for notice and comment. For the purposes of this subsection, the term ‘non-United States-based entity’ means--
‘(1) any foreign government and its agencies;
‘(2) the United Nations or any of its subsidiary organizations;
‘(3) any other international governmental body or international standards-making organization; or
‘(4) any other organization or private entity without a place of business located in the United States or its territories.’.
- (f) COST-BENEFIT ANALYSIS- Section 6 (29 U.S.C. 655), as amended by subsection (e), is amended by adding at the end the following:
‘(k) Each identification of the costs and benefits of a final or proposed standard shall include the following:
‘(1) An identification of reasonable alternative strategies, including strategies that--
‘(A) require no government action;
‘(B) will accommodate differences among differing types of operations and among employers with different levels of resources with which to comply; and
‘(C) employ performance or other market-based mechanisms that permit the greatest flexibility in achieving the identified benefits of the standard.
- The Secretary shall consider reasonable alternative strategies proposed during the comment period.
‘(2) An analysis of the incremental costs and incremental risk reduction or other benefits associated with each alternative strategy identified or considered by the Secretary. Costs and benefits shall be quantified to the extent feasible and appropriate and may otherwise be qualitatively described.
‘(3) A statement that places in context the nature and magnitude of the risks to be addressed and the residual risks likely to remain for each alternative strategy identified or considered by the Secretary. Such statement shall, to the extent feasible, provide comparisons with estimates of greater, lesser, and substantially equivalent risks that are familiar to and routinely encountered by the general public as well as other risks, and, where appropriate and meaningful, comparisons of those risks with other similar risks regulated by the Secretary. Such comparisons should consider relevant distinctions among risks, such as the voluntary or involuntary nature of risks and the preventability or nonpreventability of risks.
‘(4) For each final rule, an analysis of whether the identified benefits of the standard are likely to exceed the identified costs of the standard.
‘(5) An analysis of the effect of the standard--
‘(A) on small businesses with fewer than 100 employees;
‘(B) on net employment; and
‘(C) to the extent practicable, on the cumulative financial burden of compliance with the standard and other existing regulations on persons subject to the standard.’.
- (g) PROCESS FOR REVIEW OF EXISTING OSHA STANDARDS- Section 6 (29 U.S.C. 655), as amended in subsection (f), is amended by adding at the end the following:
‘(l)(1) The Secretary shall, within 7 years of the effective date of the Safety and Health Improvement and Regulatory Reform Act of 1995, review each standard in effect as of the effective date of such Act under the criteria established under subsection (b)(1) and modify or revoke such standards as appropriate.
‘(2) Any person affected by a standard that has been promulgated under this section may petition the Secretary to modify or revoke the standard pursuant to this subsection.
‘(3) Each petition submitted under this subsection shall include information or documentation that is adequate to--
‘(A) identify the standard or portion thereof that is sought to be modified or revoked and describe the change that is sought in the standard; and
‘(B) make a prima facie showing that--
‘(i) the standard is likely to continue having a significant impact on the industry or industries with respect to which the modification or revocation is sought, and
‘(ii) the modification or revocation is necessary in order for the risk reduction or other benefits of the standard to justify and be reasonably related to the costs of the standard in the industry or industries with respect to which the modification or revocation is sought.
‘(4)(A) Within 120 days of receiving a petition submitted under this subsection, the Secretary shall review the petition and determine whether to accept or reject it.
‘(B) The Secretary shall reject a petition submitted under this subsection if it does not include adequate information and documentation as specified in paragraph (2). If the Secretary determines to reject the petition, the Secretary, within 30 days of making that determination, shall publish in the Federal Register a notice announcing the determination to reject the petition and explaining the basis for that determination.
‘(C) The Secretary shall accept a petition submitted under this subsection if it includes adequate information and documentation as specified in paragraph (2). Within 120 days of accepting any such petition, the Secretary shall prepare a cost-benefit analysis of the existing standard and of the change that is sought in the standard.
‘(D) If, on the basis of the analysis prepared pursuant to subparagraph (C), the Secretary determines that the incremental benefits of a standard, or any part of a standard, do not justify the costs with respect to an industry or industries, the Secretary shall publish a notice in the Federal Register, initiating a rulemaking to modify or revoke the standard. Final action taken in that rulemaking shall be subject to judicial review in accordance with subsection (f) of this section.
‘(E) If, on the basis of the information and documentation submitted by the petitioner and the analysis prepared pursuant to subparagraph (C), the Secretary determines that the standard should not be changed, the Secretary shall publish a notice in the Federal Register, announcing the determination not to change the standard and explaining the basis for that determination.
‘(5) The Secretary’s determination to reject a petition under paragraph (4)(B) or a determination not to change the standard under paragraph (4)(E) shall constitute a final agency action subject to judicial review at the request of a person who submitted the petition under paragraph (1). Any such person may challenge the Secretary’s determination to reject the petition or a determination not to change the standard, by filing a petition for review in any court that would have jurisdiction and be proper venue for the filing of a petition to review the standard itself. Any such petition shall be filed within 60 days of the date on which notice of the Secretary’s determination under paragraph (4)(B) or (4)(E) is published in the Federal Register.
‘(6) Nothing in this subsection shall be construed to prohibit a person from petitioning the Secretary to promulgate, modify, or revoke a standard pursuant to any other provision of law.’.
- (h) INDEPENDENT AND EXTERNAL PEER REVIEW PANEL- Section 6(g) (29 U.S.C. 655(g)) is amended to read as follows:
‘(g) Whenever the Secretary determines that a rule should be promulgated or modified in order to serve the objectives of this Act, the Secretary shall appoint a panel of individuals to review the scientific and economic data which forms the basis for such standard and the relevance of the data to industries and workers which would be affected by the standard. Such panel shall be broadly representative and balanced, and shall include persons with expertise in scientific and economic analysis and persons with expertise relevant to the industry or industries which would be subject to the standard. Persons with substantial and relevant expertise shall not be excluded merely because they represent entities that may have potential interest in the outcome if that interest is fully disclosed to the agency and in the case of a decision affecting a single entity, no peer reviewer representing such entity may be included on the panel. Reports of the panel, including any individual and minority reports, shall be published together with any proposed or final rule under paragraphs (2) and (4) of subsection (b) on the standard. The Secretary shall provide a written response to all significant comments of the panel and shall include such responses with the proposed or final rule to which the reports of the panel members are attached.’.
SEC. 3. NOTICE OF VIOLATION.
- (a) AMENDMENTS- Section 9 (29 U.S.C. 658) is amended--
- (1) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively;
- (2) by striking subsection (a) and inserting the following:
‘(a) Except as provided in subsection (c), if, upon inspection or investigation, the Secretary or the Secretary’s authorized representative believes that an employer or an employee has violated a requirement of section 5, of any standard, rule or order prescribed pursuant to section 6, or of any regulations prescribed pursuant to this Act, the Secretary shall with reasonable promptness so notify the employer. Each such notice shall be in writing and shall describe with particularity the nature of the violation and the recommendations for abatement. In addition, the notice shall fix a reasonable time for abatement of the alleged violation. Such time for abatement shall be not less than 30 days, except that a shorter period may be allowed if the condition constitutes a direct threat to employees and a shorter period is reasonable under all of the circumstances.
‘(b) If upon a follow up inspection the Secretary believes that a violation of a standard, rule, or order prescribed under section 6, or a violation of any regulation prescribed pursuant to this Act, previously identified in a notice as provided in subsection (a), remains and the time provided for its abatement has expired, the Secretary may issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. Notwithstanding the issuance of a notice under subsection (a), the Secretary shall not issue a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health. A violation of any requirement for posting, recordkeeping, reporting, notification, or compiling or maintaining written documents or records shall be considered a de minimis violation unless the Secretary establishes that such violation has a direct relationship to the safety or health of employees or reflects an intent to mislead or deceive the Secretary or any employee.’; and
- (3) by adding at the end the following:
‘(e) The notice required in subsection (a) before issuance of a citation shall not be required in the case of any alleged violation causing death or serious injury to an employee or which constitutes an imminent danger to an employee.’.
- (b) CONFORMING AMENDMENTS- Sections 10(a), 10(c), and 17(d) (29 U.S.C. 659(a), 659(c), 666(d)) are each amended by striking ‘9(a)’ each place it occurs and inserting ‘9(b)’.
SEC. 4. CONSULTATION, INCENTIVES FOR VOLUNTARY ACTION, AND TECHNICAL ASSISTANCE.
- The Act is amended by inserting after section 8 the following:
‘SEC. 8A. (a) The Secretary shall establish an office to promote, administer, and coordinate the programs and activities described in this section.
‘(b)(1) Except as provided in this paragraph, the Secretary shall not conduct an inspection or investigation of any place of employment for which certification has
been provided in accordance with paragraph (2) or (4). Such prohibition does not apply to inspections and investigation conducted for the purpose of--
‘(A) determining the cause of a workplace accident which resulted in the death of one or more employees or the hospitalization of 3 or more employees,
‘(B) responding to an inspection request under section 8(f), or
‘(C) conducting an inspection as required under section 9(c)(1).
‘(2) In order to qualify for the exemption provided under paragraph (1), an employer shall certify that the place of employment or conditions of employment have, during the preceding year, been reviewed under--
‘(A) a consultation program provided by recipients of cooperative agreements described in subsection (d), or
‘(B) a workplace review provided by any person certified under paragraph (3).
- Such review shall include a determination that any serious hazards identified in the workplace have been corrected and that the employer has in place an effective means of addressing serious workplace hazards.
‘(3) The Secretary shall, within 6 months after the date of the enactment of the Safety and Health Improvement and Regulatory Reform Act of 1995 establish a program for the certification of persons to conduct reviews under this section. The certification program shall provide--
‘(A) that persons may be certified generally or as to specific industries, and that the certification may be for health, safety, or both;
‘(B) uniform minimum standards for certification; and
‘(C) acceptance, where appropriate, of certifications made by--
‘(i) any generally recognized training institution if the course of study of the institution meets the criteria that the Secretary shall prescribe, or
‘(ii) any generally recognized certifying entity.
‘(4) The Secretary may certify for exemption under paragraph (1) workplaces which have significant involvement of employees in their safety and health program, which involvement includes--
‘(A) regular consultation between employer and non-supervisory employees regarding safety and health issues;
‘(B) assurances that participating non-supervisory employees have training or expertise on safety and health issues consistent with their responsibilities; and
‘(C) opportunity for non-supervisory employees to make recommendations regarding hazards in the workplace and to receive responses or to implement improvements in response to recommendations.
‘(c)(1) The Secretary shall establish a program to give special recognition to worksites and companies and other organizations which have implemented particularly effective programs addressing occupational safety and health in the workplace. Such recognition shall include exemption from inspections except those described in subsection (b)(1).
‘(2) An organization or company may qualify for recognition under paragraph (1) only if it--
‘(A) applies to the Secretary in writing, for the recognition,
‘(B) permits an evaluation by the Secretary of its occupational safety and health operations, and
‘(C) meets such requirements and specifications as the Secretary determines to be appropriate to achieve the objectives of this subsection.
- In applying subparagraph (C) with respect to any organization or company, the Secretary shall rely upon the Secretary’s evaluation of the occupational safety and health operation of the organization or company. The evaluation should encompass all aspects of the organization’s or company’s current occupational safety and health practice.
‘(3) The Secretary shall ensure that all organizations and companies making an application under section 2(A) receive the complete results of their evaluations as well as detailed explanations of all suggestions for improvements. The Secretary shall also provide information about the recognitions and the successful quality improvement programs of the recognition-winning participants to all organizations and companies.
‘(4) The Secretary is authorized to seek and accept gifts, including in-kind assistance, from public and private sources to carry out this subsection.
‘(d) This subsection authorizes the consultative services to employers provided under cooperative agreements between the States and the Occupational Safety and Health Administration and described in part 1908 of title 29 of the Code of Federal Regulations, as in effect on the date of the enactment of the Safety and Health Improvement and Regulatory Reform Act of 1995.
‘(e) In addition to the other programs in this section, the Secretary shall establish programs to provide education, training, and technical assistance to employers and employees to assist them in the provision of safe and healthful workplaces and compliance with the requirements of this Act. The Secretary may also conduct, through grants or contracts, education programs to provide an adequate supply of qualified personnel to carry out the purpose of this Act.
‘(f) Effective in the first fiscal year that begins 3 years after the effective date of the Safety and Health Improvement and Regulatory Reform Act of 1995, not less than one-half of the annual appropriation made to the Secretary to carry out this Act shall be expended to carry out this section.’.
SEC. 5. REMOVAL OF BARRIERS TO VOLUNTARY SAFETY AND HEALTH ACTIVITIES.
- Section 4 (29 U.S.C. 653) is amended by adding at the end the following:
‘(c) In order to carry out the purposes of this Act to encourage employer and employees in their efforts to reduce the number of occupational safety and health hazards--
‘(1) employee participation, including through committees, teams, or any other arrangement--
‘(A) which exists for the purpose, in whole or in part, of dealing with the employer concerning the safety or health of working conditions or related matters, and
‘(B) which does not have, claim, or seek authority to be the exclusive bargaining representative of the employees or to negotiate or enter into collective bargaining agreements with the employer or to amend existing collective bargaining agreements between the employer and any labor organization,
- shall not constitute a ‘labor organization’ for purposes of section 8(a)(2) of the National Labor Relations Act or a representative for purposes of sections 1 and 2 of the Railway Labor Act, and
‘(2) records, reports, or other information prepared in connection with safety and health inspections, audits, or reviews conducted by or for an employer and not required by this Act shall not be disclosed in any inspection, investigation, or enforcement proceeding pursuant to this Act.’.
SEC. 6. INSPECTIONS.
- (a) EMPLOYEE-EMPLOYER COOPERATION- Section 8(f)(1) (29 U.S.C. 657(f)(1)) is amended to read as follows:
‘(f)(1) Any employee who believes that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may, if the employee has brought the violation or danger to the attention of the employer and the employer has failed or refused to correct the violation or danger, request an inspection by giving notice to the Secretary or the Secretary’s authorized representative of such violation or danger. Any such notice shall set forth with reasonable particularity the grounds for the notice, including a description of the efforts which the employee has made with the employer to have the violation or danger corrected, and a copy shall be provided to the employer no later than at the time of inspection. If upon receipt of such notification the Secretary determines that there are reasonable grounds to believe that such violation or danger exists and that the employer has failed to correct the violation or danger, the Secretary shall make an inquiry with the employer and may make a special inspection in accordance with the provisions of this section to determine if such violation or danger exists. Any such inspection shall be conducted for the limited purpose of determining whether such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe a violation or danger exists, the Secretary shall notify the employees in writing of such determination.’.
- (b) INSPECTION TRAINING AND FIRE PROTECTION- Section 8 is amended by redesignating subsection (g) as subsection (j) and by inserting after subsection (f) the following:
‘(g) Inspections conducted under this section shall be conducted by at least one individual who has technical expertise by training or experience in the industry or types of hazards being inspected.
‘(h) The Secretary shall enter into agreements with other Federal agencies and with States to train inspection personnel of agencies which conduct inspections of employers to inspect places of employment to determine if employee fire protection is adequate and shall establish a system for referral of fire hazards to the Secretary after notification to the employer, if the employer fails to take corrective actions.’.
- (c) SMALL BUSINESS INSPECTIONS- Section 8, as amended by subsection (b), is further amended by adding at the end the following:
‘(i)(1) Except as provided in paragraph (2), the Secretary shall not conduct routine inspections of, or enforce any standard, rule, regulation, or order under this Act with respect to--
‘(A) any person who is engaged in a farming operation which does not maintain a temporary labor camp and is employing 10 or fewer employees, or
‘(B) any employer of not more than 50 employees if such employer is included within a category of employers having an occupational injury or a lost work day case rate (determined under the Standard Industrial Classification Code for which such rates are published) which is less than the national average rate as most recently published by the Secretary acting through the Bureau of Labor Statistics under section 25.
‘(2) Paragraph (1) shall, in the case of persons who are not engaged in farming operations, not prevent the Secretary from--
‘(A) providing under this Act consultations, technical assistance, and educational and training services and conducting under this Act surveys and studies;
‘(B) conducting inspections required under section 28(a) or conducting inspections or investigations in response to employee’s complaints as provided in section 8(f), issuing warnings for violations of this Act found during such an inspection, and issuing citations and assessing a penalty for violations which are not corrected within a reasonable abatement period consistent with subsections (a) and (b) of section 9;
‘(C) taking any action authorized by this Act with respect to imminent dangers;
‘(D) taking any action authorized by this Act with respect to health standards;
‘(E) taking any action authorized by this Act with respect to a report of an employment accident which is fatal to at least one employee or which results in hospitalization of at least 3 employees and taking any action pursuant to an investigation of such report; and
‘(F) taking any action authorized by this Act with respect to complaints of discrimination against employees for exercising their rights under this Act.’.
SEC. 7. EMPLOYER DEFENSES.
- Section 9 (29 U.S.C. 658), as amended by section 3, is amended by adding at the end the following:
‘(f) No citation with respect to an alleged violation may be issued under subsection (b) to an employer unless
the employer knew or with the exercise of reasonable diligence would have known of the presence of such alleged violation. No citation shall be issued under subsection (b) to an employer for an alleged violation of any standard, rule, or order promulgated pursuant to section 6, or any other regulation promulgated under this Act if such employer demonstrates that--
‘(1) employees of such employer have been provided with any training and equipment required by the standard or rule at issue;
‘(2) work rules designed to prevent such a violation have been established and communicated to employees by such employer and the employer has taken reasonable measures to implement such work rules and to discipline employees when violations of such work rules have been discovered; and
‘(3) the failure of employees to observe work rules led to the violation.
‘(g) A citation issued under subsection (b) to an employer who violates the requirements of any standard, rule, or order promulgated pursuant to section 6 or any other regulation promulgated under this Act shall be vacated if such employer demonstrates that employees of such employer were protected by alternative methods substantially equal or more protective of the employee’s safety and health than those required by such standard, rule, order, or regulation in the factual circumstances underlying the citation.
‘(h) Notwithstanding any other provision of law, compliance with a requirement under this Act or any other Federal regulatory requirement designed to protect human health or safety shall be a defense against a citation or any civil or administrative action for a violation of a requirement under this or any other law, where the requirements under the 2 laws are potentially in conflict. For purposes of this subsection, the term ‘potentially in conflict’ means a requirement that overlaps with, is inconsistent with, or conflicts with, a requirement under this Act, and includes labeling requirements for the same product and training requirements that are related to the same hazard.
‘(i) Subsections (f), (g), and (h) shall not be construed to eliminate or modify other defenses which may exist to any citation.’.
SEC. 8. PENALTIES.
- (a) ELIMINATION OF ‘WILLFUL AND REPEATED’ AUTHORITY- Section 17 (29 U.S.C. 666) is amended by striking subsection (a) (relating to willful and repeated violations), by redesignating subsection (k) (relating to the definition of serious violations) as subsection (a), and by redesignating subsection (l) as subsection (k).
- (b) CRITERIA FOR ASSESSING PENALTIES- Section 17(j) (29 U.S.C. 666(j)) is amended to read as follows:
‘(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to--
‘(1) the size of the employer,
‘(2) the number of employees exposed to the violation,
‘(3) the likely severity of any injuries directly resulting from such violation,
‘(4) the probability that the violation could result in injury or illness,
‘(5) the employer’s good faith, including correcting the violation after it has been identified,
‘(6) the extent to which employee misconduct was responsible for the violation, and
‘(7) the effect of the penalty on the employer’s ability to stay in business.
- The Commission shall not assess a penalty greater than that proposed by the Secretary. A civil penalty assessed under this section may be reduced by the cost to the employer of correcting the violation to which the penalty applies.’.
- (c) SPECIAL ASSESSMENTS- Section 17 (29 U.S.C. 666), as amended by subsection (a), is amended by adding at the end the following:
‘(l) The Secretary may propose that a special assessment be applied in the following circumstances:
‘(1) Fatalities of employees caused by violations of standards issued under section 6.
‘(2) An excessive history of serious injuries to employees caused by violations of standards issued under section 6.
- When the Secretary determines that a special assessment is appropriate, the Secretary may propose a multiplier, based on the factors listed in subsection (j), of not greater than 10 to the penalty determined under subsection (b).’.
- (d) NO PENALTIES WHERE NO STANDARD OR REGULATION EXISTS- Section 17 (29 U.S.C. 666) is amended by striking out ‘of the requirements of section 5 of this Act,’ each place it appears.
- (e) JURISDICTION FOR PROSECUTION UNDER STATE AND LOCAL CRIMINAL LAWS- Section 17 (29 U.S.C. 666), as amended by subsection (c), is amended by adding at the end the following:
‘(m) Nothing in this Act shall preclude State and local law enforcement agencies from conducting criminal prosecutions in accordance with the laws of such State or locality.’.
SEC. 9. REVIEW BY THE COMMISSION.
- (a) COMMISSION ACTION- Section 10(c) (29 U.S.C. 6559(c)) is amended as follows:
- (1) In the first sentence, by striking out ‘fifteen’ and inserting in lieu thereof ‘30’.
- (2) By amending the second and third sentences to read as follows: ‘The Commission shall thereafter issue an order, based on its de novo findings of fact and its de novo conclusions of law, affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief, and such order shall become final 30 days after first issuance. Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that the abatement has not been completed because of factors beyond the employer’s reasonable control, the Commission, after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation.’.
- (b) UPHOLDING COMMISSION’S CONCLUSIONS- Section 11(a) (29 U.S.C. 660(c)) is amended by adding the following sentence immediately after the sixth sentence: ‘The Commission’s conclusions of law with respect to the construction of this Act, or regulations, rules, standards or orders adopted under this Act, shall be upheld if reasonable.’.
- (c) NUMBERS- (1) Section 12(a) (29 U.S.C. 661(a)) is amended by striking out ‘three members’ and inserting ‘5 members’ and by inserting after the second sentence: ‘At least one member of the Commission shall have experience or expertise in mining.’.
- (2) Section 12(f) (29 U.S.C. 661(f)) is amended by striking out ‘two’ and inserting ‘3’.
- (d) AMENDMENT- Section 12(g) (29 U.S.C. 661(g)) is amended by adding at the end the following new sentence: ‘If the parties so agree, no formal proceedings, including requests for the production of documents, requests for admissions, interrogatories, or depositions shall be required.’.
SEC. 10. NIOSH REPEALED.
- The Act is amended by repealing sections 20, 21, and 22 (29 U.S.C. 669, 670, 671).
SEC. 11. STATE WORKMEN’S COMPENSATION COMMISSION REPEALED.
- The Act is amended by repealing section 27 (29 U.S.C. 676).
SEC. 12. STATE PROGRAMS.
- Section 18(c) (29 U.S.C. 667(c)) is amended--
- (1) in paragraph (2), by striking out ‘are required by compelling local conditions and do not unduly burden interstate commerce’ and inserting ‘are substantively the same as any requirement under a standard promulgated under section 6,’;
- (2) in paragraph (3), by inserting before the comma at the end the following: ‘and provides means for informal resolution and adjudication of contested citations’; and
- (3) by adding at the end the following:
‘Paragraphs (4) and (5) shall not apply if the State has adopted alternative performance measures to assure that its program is at least as effective as the Federal program in assuring safe and healthful employment and places of employment.’.
SEC. 13. DISCRIMINATION.
- Section 11(c) (29 U.S.C. 660(c)) is amended by striking out paragraphs (2) and (3) and inserting in lieu thereof the following:
‘(2) Any employee who believes that the employee has been discharged or otherwise discriminated against by any person in violation of paragraph (1) or who believes that the employee has been discharged or discriminated against because of an action taken by the employee under section 8(f), may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such a complaint the Secretary shall notify the person named in the complaint and begin an investigation to determine if the Secretary should, on behalf of such employee, request the Commission to take action on the basis of such complaint. The Secretary shall make such determination within 60 days of the filing of such complaint.
‘(3) If within such 60 days, the Secretary does not file a complaint on behalf of the complainant with the Commission, such employee may file such complaint with the Commission. If such a complaint is filed with the Commission of if the Secretary files a complaint, the Commission shall provide opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section), and issue an order, based upon findings of fact and conclusions of law. In such an order, the Commission may order such equitable relief as may be appropriate, including rehiring or reinstatement of the employee to the employee’s former position with back pay and interest. Upon completion of a proceeding on such order, the Commission may award the prevailing party a reasonable attorney’s fee. Final orders of the Commission may be appealed as provided in subsection (a).
‘(4) Anytime after a complaint has been filed with the Secretary alleging a violation of paragraph (1), the complaining employee, the person charged with committing the violation, or the Secretary have the right to request that the complaint be referred to the Federal Mediation and Conciliation Service, or on mutual agreement, another mediator, for mediation of the dispute.’.
SEC. 14. COVERAGE OF FEDERAL AGENCIES.
- Section 3(5) (29 U.S.C. 652(5)) is amended--
- (1) by striking ‘but does not include the United States or any’ and inserting ‘but does not include any’; and
- (2) by adding at the end: ‘Such term includes the Government of the United States and any agency or instrumentality of the Government.’.
SEC. 15. FEDERAL AGENCY SAFETY PROGRAMS.
- The Act is amended by repealing section 19 (29 U.S.C. 668).
SEC. 16. PREVENTION OF ALCOHOL AND SUBSTANCE ABUSE.
- The Act is amended by repealing sections 28 through 31, by redesignating sections 32, 33, and 34 as sections 29, 30, and 33, respectively, and by inserting after section 26 (29 U.S.C. 676) the following:
‘ALCOHOL AND SUBSTANCE ABUSE TESTING
‘SEC. 27. (a) Whenever there exists the reasonable probability that the safety or health of any employee could be endangered in the workplace because of the use of alcohol or a controlled substance by any employee, the employer of such employee may establish and implement an alcohol and substance abuse testing program in accordance with subsection (b). Nothing in this section shall be construed to require an employer to establish a substance abuse or drug testing program for applicants or employees or make employment decisions based on such test results.
‘(b)(1) The substance abuse testing program shall conform to subpart B of the mandatory guidelines for Federal workplace drug testing programs published on April 11, 1988, by the Secretary of Health and Human Services at 53 Federal Register 11979 and any amendments adopted to such guidelines.
‘(2) The alcohol testing program shall take the form of alcohol breath analysis and shall conform to any guidelines developed by the Secretary of Transportation for alcohol testing of mass transit employees under the Department of Transportation and Related Agencies Appropriations Act, 1992.
‘(c) This section shall not be construed to prohibit an employer from requiring an employee to submit to and pass an alcohol or substance abuse test before employment by the employer or--
‘(1) on a for cause basis or where the employer has reasonable suspicion to believe that such employee is using or is under the influence of alcohol or a controlled substance,
‘(2) where such test is administered as part of a scheduled medical examination,
‘(3) in the case of an accident or incident involving the actual or potential loss of human life, bodily injury, or property damage,
‘(4) during and for a reasonable period of time (not to exceed 5 years) after the conclusion of an alcohol or substance abuse treatment program, or
‘(5) on a random selection basis in work units, locations, or facilities where alcohol and substance abuse has been identified as a problem or as part of a universal testing program.
‘(d) The Secretary is authorized to conduct testing of employees for use of alcohol or controlled substances during any investigation of a work-related fatality or serious injury.’.
SEC. 17. MINE SAFETY AND HEALTH.
- (a) REORGANIZATION- Titles I, II, III, and V of the Federal Mine Safety and Health Act of 1977 are repealed, except as provided in this section. Subject to the provisions of this Act, and the Occupational Safety and Health Act of 1970, the functions and authorities provided to the Mine Safety and Health Administration under such provisions are transferred to the Assistant Secretary of Labor for Occupational Safety and Health, and the responsibilities and authorities of the Federal Mine Safety and Health Review Commission are transferred to Occupational Safety and Health Review Commission.
- (b) STANDARDS- Standards promulgated under the Federal Mine Safety and Health Act of 1977 shall be deemed to have been promulgated under the Occupational Safety and Health Act of 1970. The Secretary shall not, with respect to activities, conditions, or processes which were subject to the Federal Mine Safety and Health Act of 1977, enforce any other standards promulgated prior to the effective date of this Act. The following parts of title 30, Code of Federal Regulations, are repealed effective 1 year after the date of the enactment of this Act:
- (1) Subchapter A, part 1.
- (2) Subchapter G, parts 40, 43, 45.
- (3) Subchapter M, part 50.
- (4) Subchapter P, part 100.
- (5) Subchapter Q, part 104.
- The requirements of subchapter H, part 48, shall not be enforced with respect to shell dredging or with respect to any sand, gravel, surface stone, surface clay, colloidal phosphate, or surface limestone mine.
- (c) MINE SAFETY- The Act, as amended by section 14, is amended by inserting after section 27 the following:
‘SEC. 28. (a) Each underground mine shall be inspected at least annually.
‘(b) Inspectors of mines shall be qualified by practical experience in mining, by experience as a mining engineer or by education. To the maximum extent feasible, in the selection of persons for appointment as mine inspectors, no person shall be so selected unless the person has the basic qualification of at least 5 years practical mining experience.
‘(c)(1) If upon inspection or investigation of a mine, the Secretary or the Secretary’s authorized representative finds an imminent danger exists, the Secretary or the Secretary’s representative shall issue an order requiring the employer to withdraw all persons from the affected area and not permit re-entry into the area until the imminent danger has been eliminated or all persons have been protected from exposure to the imminent danger.
‘(2) The following persons shall not be required to be withdrawn from or prohibited from entering any area of an employment site subject to an order issued under this subsection:
‘(A) Any person whose presence, in the judgment of the employer or an authorized representative of the Secretary, is necessary to evaluate or eliminate the condition described in the order.
‘(B) Any consultants to such persons.
‘(3) Any employer who is issued an order pursuant to this subsection may seek immediate review of such order in the United States District Court for the District of Columbia or for the District in which the employment site is located. Such review shall be available to the employer within one day following the issuance of the order. The burden shall be on the Secretary to prove the imminent danger and that the danger justifies the issuance of the order under paragraph (1). In the case of proceeding to review any order issued pursuant to this subsection, the court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceedings if--
‘(A) all parties to the proceeding have been notified and given an opportunity to be heard in person, by telephone or in writing on the request for temporary relief;
‘(B) the party requesting such relief shows that there is substantial likelihood that that party will prevail on the merits of the final determination of the proceeding; and
‘(C) such relief will not cause a serious hazard to employees.
‘(4) Any operator who knowingly violates or fails or refuses to comply with any order issued under this subsection shall, upon conviction, be punished by a fine of not more than $25,000, or by imprisonment for not more than one year, or by both, except that if the conviction is for a violation committed after the first conviction of such operator under this Act, punishment shall be fined of not more than $50,000, or by imprisonment for not more than five years, or both.
‘(5) The term ‘imminent danger’ means the existence of any condition or practice in a workplace as described in section 13.
‘(d) Any miner who willfully violates the mandatory safety standards relating to smoking or carrying of smoking materials, matches, or lighters shall be subject to a civil penalty assessed by the Commission which penalty shall not be more than $250 for each occurrence.’.
- (d) NATIONAL MINE HEALTH AND SAFETY ACADEMY- The National Mine Health and Safety Academy shall be maintained as an agency of the Department of Labor. The Academy shall be responsible for the training of mine safety and health inspectors and in training of technical support personnel, and for any other training programs for mine inspectors, mining personnel, or other personnel as the Secretary of Labor shall designate, in accordance with procedures and authorities as in effect before the date of the enactment of this Act.
SEC. 18. RECORDKEEPING AND REPORTING.
- (a) RECORDS- Section 8(c)(2) (29 U.S.C. 657) is amended to read as follows:
‘(2) The Secretary shall prescribe regulations requiring employers to maintain accurate records of work-related deaths and work-related injuries and illnesses that require medical treatment, other than first aid treatment, and involve one or more lost workdays or 5 or more days of restriction of work. The Secretary may require such records or reports of such records or summaries thereof be submitted to the Secretary, provided however, that any such records and reports which may be submitted to or obtained by the Secretary shall not be released or disclosed by the Secretary in any manner which identifies individual employers or workplaces.
- (b) STATISTICS- The last sentence of section 24(a) (29 U.S.C. 673) is amended to read as follows: ‘The Secretary shall compile accurate statistics on work-related deaths and work-related injuries and illnesses that require medical treatment, other than first aid treatment, and involved one or more lost workdays or 5 or more days of restriction of work.’.
SEC. 19. DEFINITIONS.
- Section 3 (29 U.S.C. 652) is amended by adding at the end thereof the following:
‘(15) The term ‘serious injury’ means an injury that results in one or more days away from work and protracted loss or impairment of the function of a bodily member, organ, or mental faculty or, in the case of exposure to toxic materials, requires medical treatment other than first aid.
‘(16) The term ‘industry’ means the 4 digit classification as defined in the Standard Industrial Classification Manual prepared by the Office of Management and Budget, unless the Occupational Safety and Health Administration finds that a broader classification adequately represents the circumstances of the constituent industries affected.’.
SEC. 20. MISCELLANEOUS TECHNICAL AMENDMENTS.
- (a) ANNUAL REPORT TO THE CONGRESS- Section 4(b)(3) (29 U.S.C. 653(b)(3)) is amended to read as follows:
‘(3) The Secretary shall annually report to the Congress regarding activities under this Act, including recommendations for legislation to avoid unnecessary duplication and to achieve coordination between this Act and other Federal laws.’.
- (b) CERTIFICATION OF EQUIPMENT- Section 7 is amended by adding at the end thereof the following:
‘(d) CERTIFICATION OF EQUIPMENT- The Secretary shall provide for a means for certification of equipment for which such certification is required pursuant to this Act, the Occupational Safety and Health Act of 1970, or the Federal Mine Safety and Health Act of 1977. The Secretary shall provide that such certification shall be conducted by nongovernmental agencies, unless the Secretary determines that nongovernmental agencies with professional or technical personnel or materials and equipment are not available.’.
SEC. 21. EFFECTIVE DATE.
- Except as otherwise provided, this Act and amendments made by this Act shall take effect 120 days after the date of the enactment of this Act.