an $8 fine for that violation. Do you have the regulation to which they referred that made the ice in the water illegal?

Mr. STOKES. Yes, sir.

Mr. HUNGATE. Can you cite that regulation to me now?

Mr. STOKES. I will get that for you.

Mr. HUNGATE. Not later than July 17.

Mr. STOKES. Yes, sir.

Mr. SMITH. And how the regulation happened to be in effect. In other words, as I understand it, it was a blanket incorporation of some industry rules.

Mr. STOKES. Yes, sir.

Mr. Chairman, the effect of the daily penalties is very severe on an employer. Faced with these absurd regulations, many of which ars absurd, employers are fined with leading penalties in the field. They must take the offense to prove themselves innocent by contesting affirmatively.

Mr. HUNGATE. When you say many are absurd, give me two that are absurd.

Mr. STOKES. I would say that having hooks on the backs of toilet partitions, which is one of them, is an absurd regulation. Another case we have had where they have been fined is this employer in the roofing business also, fined for not having a separate change room. His employees were using a large bathroom facility. He has been forced to build another room in his plant so that they can have a saparate room to change clothes in, rather than changing clothes in the bathroom.

Mr. HUNGATE. And the split toilet seats?

Mr. STOKES. And the split toilet seats and the ice in the ice water, which would indicate to me little consideration was given to the practical effects. And you have to have two bathrooms for men and women employees even though there are only mom and pop at that establishment and they get along with one bathroom at home.

They can't see why they have to spend an extra $3,000 to build another bathroom in their place. They are being forced to.

Mr. HUNGATE. The way they build them in Missouri they don't cost $3,000.

Mr. McKEVITT. Do you mean if you have a mother and father operation you have to have a separate john for mom and dad?

Mr. STOKES. Every employer in the United States must comply. Mr. SMITH. The airlines, it seems, are out of compliance, then. They have one bathroom and they have people working on airplanes. Mr. STOKES. That is accurate.

Mr. BERGLAND. Mr. Stokes has a very interesting case in his testimony in reference to a man in Omaha, Nebr. I would like to have him explain it.

Mr. STOKES. This is an example of the heavy penal sanctions on an employer. We represent Beall Construction Co., a small business in Omaha, Nebr. He received a fine of $244 for a violation of the act. There were some other fines at that point in time. Rather than hire a lawyer and go through the very burdensome procedures of taking the offense, contesting to the police commission in Washington, analagous to the Occupational Safety and Health Review Commission, he chose

another route. He also wrote a very objective letter to his Senator, Senator Carl Curtis.

Several months later, the area director in a telephone conversation accused him of writing a letter to Senator Curtis. Approximately 3 days after this telephone call the area director had inspectors back on the job inspecting and now he was fined $31,744 for allegedly not abating the original citation on a daily penalty of $750 a day.

This is twice his annual income, more than twice his annual income. He tried to comply. Interestingly enough, the day before these inspectors came, both the State of Nebraska safety inspection agency and his own insurance company made an inspection of that job and they said no violations, or they didn't find any.

Mr. HUNGATE. You said he is a small businessman. How many employees?

Mr. STOKES. I am not sure. Well, construction varies, of course, but I would say approximately 50, or somewhere in that range. He now is forced again to take the offense to contest this $31,000 fine.

Incidentally, they came out and found another 10 additional citations besides the failure to abate citation for another $35,000. His total fine was something like $36,000 on this day. This had a chilling effect on him, at least.

He felt the inspection enforcement power was wrong. You have given these inspectors the power of Federal judges almost to set these fines in the field, to force a citizen. These inspectors are trained in approximately 2 weeks in a training course. Before my testimony I made a demand under the Freedom of Information Act to the Secretary of Labor to obtain a copy of this training manual, which we understand is calculated at a sixth grade level.

They have denied my request under the Freedom of Information Act, saying, "We do not choose to give it to you." They said in spite of the fact that the Freedom of Information Act says any citizen has a right to receive any document for copying or instruction to staff which affect the public, they have trained several thousand inspectors under this document, but they say this doesn't affect the public and, "We won't let you have a copy of it."

I don't know what is in it, Chairman Hungate, but this is our understanding of it. We know it is a fast training course. We know that engineers don't fill these inspection positions. It leaves the total capriciousness of enforcement of the act, selective enforcement of it, to the inspectors in the field, particularly the general duty clause.

Mr. HUNGATE. This is a relatively new law and new procedure. Are there any circumstances or arrangements whereby a man may be going into business for the first time or he has been in a long time and wants to know whether he complies? Can he call them and have them take a free look to see whether he is in trouble or not?

Mr. STOKES. None. We have had a number of our clients ask this. There are no provisions for this under the act. As a matter of fact, the standard answer is, "If we come out there and find any violations we will have to fine you. You don't want to ask us."

One of the other problems is he can't get this information very easily. Safety engineers are beginning to back out of this business of inspecting, private safety engineers, because under the act all safety

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engineers have had their insurance canceled in the United States because of the act. Lloyds of London is one of the reinsurers, and there are several others. They have all canceled the insurance because they say, "Our insurance is going to be calculated on what the inspectors say the law is."

Take the general duty clause. The general duty clause says to keep your premises free from recognized hazards. This is a catchall phrase. If they can't find one of the other provisions in these voluminous standards they will get you under the catchall phrase. It defines no particular conduct that an employer can judge as recognized hazards. What is certain is he will be fined for it if he violates what the inspector

says.

Mr. HUNGATE. Do we have further questions from the committee? Mr. McKEVITT. Mr. Chairman, I could ask questions all day, but in the interest of other witnesses I will waive asking them at this time. Mr. HUNGATE. I don't mean to stifle you.

Mr. McKEVITT. Can you summarize what changes you would like to see done immediately?

Mr. STOKES. No. 1, I would like to see the leading penalties taken out of the act with provisions put in for aiding employers rather than penalizing them into compliance.

No. 2, I would like to see a repeal of all of these safety regulations and pass to some discretion. Congress didn't think they were doing this, but it happened. An entire national building code has been passed. Every single building in the United States will have to be reworked to comply with the 1971 electrical code, even though they were built in 1960 or 1950. Every stairway in the United States will have to be redone. Every exit will have to be redone. The building materials of the entire building may not comply with the 1971 fire protection code. We are talking of billions of dollars, with no consideration being given for economics.

I have talked of some of the ludicrous examples in the toilet seats, but there are very serious examples on these buildings. Can you imagine the money required to rewire every building in the United States, to redo every stairway in the United States?

It is not necessary. These standards were picked up and incorporated, I would say. To repeal these standards and pass them one at a time as the Department of Transportation did is one thing. They took the 1966 Vehicle Act and passed regulations one at a time with heavy study into the effect of these economically, safetywise, and from an engineering point of view.

Mr. HUNGATE. That is the sort of procedure you would recommend? Mr. STOKES. Yes, sir. Rather than passing 100,000 of these in a few weeks, pass a few that really count.

Mr. McKEVITT. What is wrong with the ordinary stairway today, and what is wrong with present electrical circuitry?

Mr. STOKES. To give you an example, if you had a building built prior to 1965, you did not have a three-wire circuit in it, the third wire being a ground. You had a neutral wire only. In the 1971 electric code, it requires a three-wire circuit. This means you literally have to tear out every single bit of wiring in the United States built prior to 1965 and rewire.

Stairways have to all have toeboards. There is not an architect in his right mind who would design a toeboard on a balustrade of a stairway?

Mr. McKEVITT. On a what?

Mr. STOKES. Balustrade, the vertical part of a stairway.

The risers have to be a certain height. Several years ago risers were standardized at 6 inches. I believe now they are required to be 7 inches, under the standards. This means that every stairway that has 6-inch risers has to be reworked to give them 7-inch risers.

I may have the inches a little off, but that is what the law requires. Mr. McKEVITT. What is a riser?

Mr. STOKES. The vertical distance you step up to a step.

Mr. BERGLAND. I would just like to ask a question on this point. Is this required in the act? I read the act, and I don't see these kinds of things defined. It seems to me this is part of the powers that have been granted to the Secretary of Labor.

Mr. STOKES. Correct. These are regulations, standards.

Mr. BERGLAND. And within that general authority, these rules have been promulgated?

Mr. STOKES. Yes, sir; wholesale.

Mr. HUNGATE. Mr. Smith.

Mr. SMITH. In summary, isn't this what really happened? In fighting the law, some of the industry said, "We already have lots of rules. Here is a copy of what we are doing now." Then after the law was passed, they got mousetrapped because the Department took their code and said. "That is what you are already doing and we will make that part of the regulations." In fact they were not complying with their own rules and what the Labor Department needs to do is back up and realize they haven't been doing a lot of those things for 50 years. They should back up and start over developing regulations. Is that about right?

Mr. STOKES. That is essentially it, Mr. Smith. But many of the things picked up were never intended to be the law of the land. They were something to shoot for, or they may have been for public safety rather than employee safety, such as fire protection.

Every warehouse in the United States has to have a sprinkler system, no matter if it was built in 1890. There are no employees in these buildings, except rarely. Yet they have to spend billions of dollars to have sprinkler protection.

Mr. HUNGATE. Are there figures or studies to show any relationship or lack of relationship between some of these standards and deaths and injuries of employees, if changing the risers would save so many lives? I suppose we are interested in that. If it wouldn't then we may waste time.

Mr. STOKES. I know of no figures. I understand that the Secretary of Labor has at least one man who is keeping track of economics. No one has ever been able to get a copy of them. Of course, there are certain other statistical surveys being made right now. Maybe some of the other witnesses will have further information.

Mr. HUNGATE. Mr. Conte.

Mr. CONTE. When we had the Secretary of Labor before our subcommittee on his budget, I raised the fact that the typical small busi

nessman can't afford a safety engineer, and the big industrialist doesn't have this problem. He has a safety engineer, and he can prepare himself for this law.

One of the things that disturbs me is that OSHA people could go in and find a hazard in that particular small industry and fine him, as you said. The businessman couldn't have any consultation. If I remember correctly, the Secretary of Labor said that Congress imposed that law on him.

Mr. STOKES. That is correct, sir.

Mr. CONTE. The law has to be changed, in your opinion. It isn't just the regulations that are bad. If you think this law was bad, you should have seen the other law hat they brought to the floor of the House when we substituted the Steiger bill for it.

Mr. STOKES. I have read the Congressional Record during that time. Mr. CONTE. It was a lot worse than this one.

Mr. McKEVITT. Where did these regulations come from?

Mr. STOKES. They accepted them from various sources.

There are some 300 standards, compiled standards, that were picked up by the Secretary of Labor. If it had any sort of compiled safety standards, they picked it up and put it in the act, frankly without reading it, I believe, which became the law of the land.

They put these in from what they called consensus standards. These were certain industry standards which at least at that time perhaps the Department of Labor thought were objective and should be in as standards to be complied with by industry. But they were just totally too complex and unworkable for the average business as well as the most sophisticated business because many of them were out of date.

We can't even get copies of even the Department of Labor's construction regulations which they print. For 9 months it is out of print. It is not in print now. Yet the Department of Labor inspectors are fining people under this thing.

The 4.5 million employers are hostile at this act. They are frustrated by the enforcement procedures. They are furious by this fact. They want to comply.

Mr. McKEVITT. I understand that fact, but my question is, are most of them in the regulations or in the law?

Mr. STOKES. In this volume here are regulations, standards, passed by the Secretary of Labor. But in this he incorporates some 300 other regulations which are compiled standards.

We will bring them in in a box for you and show you at least half of them, including the 10 volumes of the national fire protection code. That in itself is like 2 feet long.

Mr. McKEVITT. What changes would you recommend being made in the law?

Mr. STOKES. I would relieve the burden from the small businessman first of all. Take out the leading penalties, where he can have some advisory opinions on whether he is in compliance.

By the way, one thing the Secretary I am sure will bring up is in the first 90 days of this law there were provisions for this service to be done. There were almost no requests from the employers in the United States. They didn't even know about the law at that time. It was very ineffective. There are other provisions that are calculated