will give advice and assistance to those businessmen who seek it and, during that time, no citations would be issued to businessmen who, in honest attempts at trying to correct their problems, ask for help from the Labor Department. This would correct a situation from one where business does not want anything to do with the act and those who regulate it to one where they seek help and advice as to how their business may comply with the law for the benefit of all who are involved.

Mr. Chairman, some organization and reason should be brought to what is now a very confused situation. The OSHA was passed, as I said before, to help the employee by providing him a safe place to work. It was to ease the huge amount of costs the employers and Government pay because of work-related accidents. It was not passed to make money through fines; it was not intended to be a way to harass businessmen. When businessmen make honest attempts to provide these clean, healthy places in which their employees may work, they should be encouraged and not discouraged.

Mr. Chairman, the picture should be changed so that safety and health may be truly provided.

This concludes my summary of the statement I have prepared for submission.

I would like to add a point or two, if I may.

Mr. HUNGATE. Please do.

Mr. SHOUP. I think it is very interesting in all of the correspondence I have had with my constituency that not at one time has anyone complained of the desire to provide a safe and healthy place. I have had no businessmen to come to me and say: "Look, we do not want a safe place; we don't want to do that." Their complaint is they do not have any assistance, and that, rather than remedial legislation, we are faced with punitive legislation.

And I doubt very much if the amount of the punitive fines that are applied are really doing the job-you know, an $8 fine for not having a guard on a stair well certainly is not too punitive to have any effect in causing them to have a more safe condition.

If I may relate an item or two brought to my attention?

I do not have it documented-with me, but it, in my mind, is probably the outstanding one that I have had in my particular district. It is in the northwestern part of the district where an inspector came through and did comply with the rules whereby a member of management did accompany him. The first complaint I got from management was that the inspector at no time spoke to him. He just walked through with his list and just kind of looked one way or the other and made little notes. He never pointed out "This is unsafe" or "This isn't safe." or anything like that. At the end of the inspection, the inspector said "Thank you," and left.

Some 3 weeks later, the management was notified of the citations. There were six on which specific fines were levied. The management agreed that on four of them there were unsafe conditions. He felt as though he should have had time to correct them, but he would not argue that it was not a valid criticism.

However, on two of them he did object. And I think this we can. point out specifically, that this is punitive and really not trying to correct anything; it is not trying to make a better place to live or work in.

One of them was that he was fined because there was a kerosene can without a proper lid on top. A fine was levied under the restrictions that an inflammable liquid must have an adequate cover. This was in a repair shop of this particular business. If the inspector had taken the time to say "How come that can that has Kerosene written on it doesn't have a lid on it?" he would have found out that there was nothing but brake fluid in it, that they had no kerosene on the premises, and the only reason they had it in that can was because it had an adequate type of spout that they could reach in and pour it into the master cylinder. And, of course, brake fluid is not flammable. So, No. 1, there was a fine there that he protested.

The other one was a workman working on a piece of automotive equipment, and he had a can of solvent with which he was cleaning the oil and grease off of it. The complaint and citation was that this was a volatile substance, that the fumes would come from the open solvent, cross the room, go down a stair well, and accumulate around a gas heater and cause an explosion. You know, basically, this is valid. I will not argue about that. And this has happened. However, if the inspector had asked, he would have found that there was no natural gas in the building. This was actually an electric water heater and not a gas water heater.

To continue, those two fines totaled $26.

He objected, and following the law, a hearing was held in northern Montana for $26 in fines. There was a judge, a court reporter, the State inspector and the one who did the inspection flown into northwestern Montana to hold a formal hearing for $26 worth of fines that should never have been called, if the inspector had just opened his mouth and asked. This is my emphasis that we are looking at punitive legislation and not remedial.

I get the impression that too many of the inspectors are running around like metermaids just trying to justify their existence to write up any type of punitive fines they can.

Another thing that is happening in my district that is very serious, is oil production. We have outdoor storage tanks. Now, it has been the policy, an accepted safety practice, that the outside rungs of a ladder that is built or that is welded onto a tank-I am sure you are all familiar with what I am speaking of-extend 6 inches. Now, the rule says 7 inches, and that you must comply. I would hesitate to even guess how much it is going to cost to change the 6 to the 7 inches. If you do not do it, you shall get fined.

I, of course and probably like a great number of the other Congressmen who, when we heard of this and we started getting our constituency mail complaining about it, reacted as we often do and put in remedial legislation. Sometimes we operate too rapidly. I probably am as guilty as anyone.

After putting in and sponsoring a couple of bills to take care of specific instances, we waited some time, and I have submitted a bill which I would like to refer to the subcommittee as a bill that I feel would take care of most of the problems in correcting this very needed act. It is needed, and I endorse it highly, but I think it does need amending so that it does do what we want it to do.

Thank you very much.

Mr. HUNGATE. Thank you very much for a very helpful approach by your analysis of this contrast between remedial and punitive legislation.

Mr. McKevitt?

Mr. McKEVITT. It is hard to justify this strange situation where they go to all that expense for a $26 citation.

Mr. SHOUP. My constituency mail that I receive is mainly from the businessman. However, in my phone calls and in trips to the district, my ears have been bent by the laboring man telling me or asking me when saying to me:

Dick, when in the world are you going to fix the law so we can have safer working conditions rather than having the safety inspectors spend the most of their time running around checking how many "hangers" are in the restroom? Just last Sunday, I got a complaint that there was one man fined because he did not have, if you will pardon me, a split toilet seat. Mr. McKEVITT. We went through the split toilet seat doctrine this morning, but go ahead.

Mr. SHOUP. You went through that?

And I have no answer to it. The employee, labor itself, is as concerned as the employer. So, I do not think that we are just making a point that the employer is the one that is being discriminated against.

Possibly, very possibly, the one that is harmed more, the one in the long run that is going to be harmed more, is the employee, because we are talking about money and harassment to the employer, and we very well could be talking about the life of this guy who is working there. And I am sure that his life is not endangered because there is not a coathanger, but maybe if the inspector would spend his time out looking for unsafe conditions, his time might be better spent.

Mr. McKEVITT. We are also talking about the safety of his job. Many jobs are going down the drain, because a lot of these small businessmen are going to have to close up because of the overreaction to this legislation.

Mr. SHOUP. Yes, sir. Another point, if I may, another point coming from the agricultural region.

I am sure that you are all aware that the only reason that our country was able to grow the way it did was because in our country we had good neighbors. All of our history has recorded such things as barn raisings, assistance in the farming operations, but under the present law if your neighbor comes over and helps you in the agricultural field, say you trade off in the roundup or in the haying operations, he then becomes an employee and you are subject then to all of the requirements of being an employer.

This is certainly an unwarranted harassment.

Mr. McKEVITT. Thank you. I enjoyed your testimony.

Mr. HUNGATE. Mr. Bergland?

Mr. BERGLAND. Thank you.

I want to commend you for a very well-prepared statement. The question on the prepared statement at the bottom of the first page where you referred to some folks who had been ordered to install some devices and they came to find out that these devices were not even on the market.

Are you prepared to discuss that in detail, as to what these devices were?

80-497-72-9

Mr. SHOUP. As you can notice, Mr. Bergland, some of my testimony I quote from cases supplied to me by others. This one happened to be from Senator Young. I can provide those. I am sure they are part of the record on the Senate side also.

I thought they were quite applicable, and I wanted to make sure they were entered into the record here.

Mr. BERGLAND. Mr. Chairman, I would ask consent that Mr. Shoup be given some time to produce that evidence if he could. I would be very interested.

Mr. HUNGATE. Without objection, we are accepting statements up to July 17, if you have it before that date.

Mr. SHOUP. Yes, I can do that.

Mr. HUNGATE. Thank you for your worthwhile testimony.

Mr. SHOUP. Thank you, Mr. Chairman.

Mr. HUNGATE. Now, our next witness is Congressman Abourezk of South Dakota who is accompanied by Wilfred Leuning.

I am pleased to have you with us.

I have known of a longtime interest Congressman Abourezk has expressed in this subcommittee, and he has been encouraging this committee to study these problems.

TESTIMONY OF HON. JAMES ABOUREZK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH DAKOTA; ACCOMPANIED BY WILFRED LEUNING, SIOUX FALLS, S. DAK.

Mr. ABOUREZK. Thank you for asking me here.

This is Mr. Wilfred Leuning of Sioux Falls, S. Dak., here at the table.

He has a story that he wants to tell the committee.

I will just give you a rough outline, and, then, if you want to ask some questions of Mr. Leuning, you can have him fill in the details. That is what he requested we do.

I have a prepared statement that I would like to submit for the reccord at this time. I will not read it; I will just submit it.

Mr. HUNGATE. Without objection, the statement will be made a part of the record at this point.

(The prepared statement submitted by Mr. Abourezk follows:)

STATEMENT OF HON. JAMES ABOUREZK, A MEMBER OF CONGRESS FROM THE STATE OF SOUTH DAKOTA

Mr. Chairman, I would like to commend you for holding these hearings on the impact of the Occupational Safety and Health Act of 1970 on small businesses throughout America. This has been a matter of very real concern to me and the citizens of South Dakota. A recent resolution adopted by the South Dakota Stockgrowers Association is typical of the reaction and feelings of many, South Dakotans. This resolution reads:

Whereas this nation was founded on the principles of economic freedom and free enterprise by which this nation became strong and a leader among nations. Whereas the Occupational Safety and Health Act of 1970 (OSHA) has been developed for heavy industry and manufacturing.

Whereas forcing these same unrealistic rules on small business and agriculture would force curtailment of employment, or by enforcement would put out of business many small businesses, farmers and ranchers.

Whereas OSHA gives unprecedented control over businesses by a government agency.

Whereas the burden for compliance is entirely on the employer and none on the employee, with employers only subject to violations.

Whereas the Stockgrowers Association support State and Federal legislation to repeal or modify OSHA : Therefore be it

Resolved, The South Dakota Stockgrowers Association strongly support repeal or modification of OSHA by removing Agriculture and Small Business from its provision.

It is concern such as this that has prompted me to introduce legislation that would amend OSHA. None of us, Mr. Chairman, are against safety. We all recognize that the working men and women of America are entitled to safe and healthful working conditions. No one recognizes that more than the small businessman who loses valuable time from his skilled workmen when accidents occur.

Nonetheless, the history of the administration of OSHA in South Dakota has been a tale of chaos and confusion. The Committee report on H.R. 15417, the bill making appropriations for the Departments of Labor and Health, Education and Welfare, and related agencies for the fiscal year 1973 stated:

"The Committee has received many complaints of overly zealous enforcement officers and other complaints of great difficulty in getting assistance from the Department in interpretation of the standards and regulations in order to determine whether or not a particular workplace is in compliance or what would be required to get it in compliance."

That is exactly what the people of South Dakota have encountered. I am accompanied today by Mr. Wilfred Leuning of Sioux Falls, South Dakota who will relate some of his experiences under this law.

As you know, an amendment to the Labor Department appropriations was adopted which would prohibit the use of any of the funds appropriated to pay the salary for persons who inspect firms employing 25 persons or less for compliance with OSHA. This amendment, if retained in the final bill, would provide a year's moratorium for our small businesses from Federal harassment. I welcome that. However, it does not go to the heart of the problem.

Again, I am not against safety. But safety can be encouraged and promoted without the Gestapo like tactics that are implicit in OSHA and that have been used to date. I strongly feel that the amendments in my legislation, H.R. 14371, would take that approach of encouragement and education rather than punishment and force. There are five essential parts to this bill. They are:

(1) an exemption for businesses employing ten or less employees in a Calendar year;

(2) a requirement that all standards promulgated by the Secretary of Labor meet a test of reasonableness;

(3) a requirement that all citations include a statement of the action necessary for abatement of the violation cited;

(4) a provision that no fines shall be imposed against an employer of 50 or less employees after the first inspection provided that all violations are corrected within the allowed abatement time; and,

(5) a provision that all employers of 50 or less employees may receive technical assistance as well as grants up to 50% of cost incurred in seeking compliance where severe economic hardships would otherwise be imposed.

The larger businesses of our country can, and frequently do, hire full time safety engineers. They can study laws such as OSHA and determine what is needed in order to be in compliance. The small businesses can not afford that luxury. Unless this law can be changed so as to provide assistance in compliance and education in safety techniques, this law will force the continuance of the trend toward ever larger corporations. Under present circumstances, small businesses are left at a distinct disadvantage. I am sure that this was not the intent of Congress, but corrective action must be taken.

At this point I would like to add to my statement a copy of an affidavit submitted to me by Mr. Wilfred Leuning which indicates the problems he has encountered in the administration of this law. Mr. Leuning is with me and may want to elaborate on his experience.

AFFIDAVIT

Wilfred Leuning, being first duly sworn upon his oath deposes and says:

That he is a resident of Sioux Falls, South Dakota, and that he is the owner of D & W Construction Company of Sioux Falls and also of the Ellis Grain