can think of. We have responded to all of these comments and have developed a rather extensive package of materials showing what we consider to be an excellent history of our efforts to work with the NAHB and to recognize the problems to which they refer.

We will be glad to make this package available to the committee. We will be happy to submit it. I daresay some of you must have received it if you have written us about the National Association of Homebuilders' problem. You have surely received a copy of this document, which is a rather thick copy of materials.

Mr. HORTON. I am not sure I have received one.

Mr. GUENTHER. We will make it available to the committee.

Mr. HORTON. Coming to a different matter, the Homebuilders testified this morning that they were required to adhere to the heavy construction rules and regulations rather than to the light residential construction. They made some rather serious allegations with regard to the inability of labor to distinguish between those two; that is, heavy construction and the light residential construction. They went to some length, as a matter of fact, to indicate the insurance differential with regard to heavy construction and light, residential type of construction.

Their premise was that your rules and regulations require them to adhere to the same standards as the heavy construction, and that there is really no need for that, that there ought to be a separate standard for them. Apparently there is some legislation before the Congress sponsored by approximately 140 members of the National Association of Homebuilders to accomplish this.

What is your position with regard to this situation?

Mr. GUENTHER. Our position is that while there certainly are some differences between the light residential construction industry and the type of activity that takes place on such a work site and heavy industry, high-rise buildings, major bridges, roads, that sort of thing. While there are some differences, undeniably, there are also more, in our judgment, similarities between the types of work that are performed in a routine, everyday way in such workplaces. There are more similarities in our judgment than there are dissimilarities. We have specifically requested on several occasions and received from the Homebuilders a list of those elements of the standards which bother them or are a trouble to them.

Last February, we made adjustments to the construction standards to attempt to accommodate those points raised by the Homebuilders which to us were justified. So the standards have been adjusted at least

once.

Mr. MINTZ. One major adjustment.

Mr. GUENTHER. We have told the Homebuilders that we are willing to receive additional specific recommendations with regard to changes that concern them. We are informed that they have for sometime been working on a voluminous package of proposed changes.

When, as and if we receive those proposed changes we will give them the same kind of full consideration that we have given in the past. We maintain that if a man is working with an ungrounded power tool on the floor of a 1-story house or on the 40th story of a building, he is just as susceptible to electrical shock.

If a man falls 10 feet from a rafter or what-have-you, he is just as susceptible as if he falls from the 40th floor to the 39th floor.

There are many, many circumstances existing in the heavy area that also apply in light residential construction. We have attempted to pick up those points of concern, and we believe that by and large the standards as written are appropriate to both kinds of construction.

We have a number of letters from contractors stating what we found on their site wasn't really all that bad and they think our presence is beneficial.

Mr. HORTON. What we are concerned with on this committee is not stifling small business. I am sure you are aware of our concern. I don't mean to say that small businesses shouldn't comply, they should. However, part of the problem in America today is to try to make it possible for the small businesses to exist.

As I look through these rules and regulations, and this is just an explanation, I see some rather complicated ones. It certainly seems to me that the rules and regulations for heavy construction (that is a 12-, 15- or 50-story building) should be quite different from those for light residential construction. There should be some reasonable approach to this problem without saying, "Everybody who builds a 1-story house will have to build it the same way as they would build a 12- or 50-story building."

I recognize there are times when the hazards are the same. But there are also, it seems to me, areas in which there can and should be some adjustment in standards with regard to light residential construction. For example, Mr. Warranch said:

We believe that one of the principal reasons the Department of Labor has refused to recognize the real differences between light residential construction and heavy construction is that it has had little experience with light residential construction and does not even maintain separate records for each industry.

Do you maintain separate records for each industry?

Mr. GUENTHER. I believe our new recordkeeping system will provide us with cutoffs that will indicate differences between various elements of the construction industry. I believe that is correct.

Mr. HORTON. I think the thrust of what I am attempting to explain is that we ought to try to be reasonable. Dealing with light residential construction is a different situation from dealing with heavy construction.

I am fully in support of this legislation and think it is very important. On the other hand, I don't think we ought to make it so burdensome that a fellow will have to close his door and go out of business.

Mr. Chairman, I have many more questions, but will yield so the other members can have an opportunity to question.

Mr. HUNGATE. We will try to hold our members to a reasonable 5minute rule so we will all get a chance before the bells ring, if we can. In response to Mr. Horton's question about light and heavy construction, if I understood your answer your new recordkeeping system will record that, but I take that to mean that you do not now maintain separate records.

Mr. GUENTHER. As of the present time, the existing recordkeeping statistics on accidents, injuries and fatalities reflect I think only in a

very small way the difference between light and heavy construction. Mr. HUNGATE. It is not in any way as thorough as you plan to make it, is that correct?

Mr. GUENTHER. Yes, sir.

Mr. HUNGATE. Mr. Bergland.

Mr. BERGLAND. Thank you, Mr. Chairman.

Mr. Secretary, I don't believe anybody in the Congress is interested in rewriting the act in a way that could or would contribute to unsafe or unhealthy working conditions for the millions of employees in the United States, but the people I represent are frightened to death of this law.

My businessmen are for the most part small businessmen. One of their real concerns is they have asked various competent authorities for some help and guidance in trying to comply with the act.

For example, I had a report from one employer who said that he sought the counsel of a professional safety engineer who was employed by an insurance company that was covering his premises. The engineer came and made a set of recommendations and left the employer with the notion that he was in compliance with the terms and regulations under OSHA.

Shortly thereafter he was visited and found that he was not in compliance in fact. These are the kinds of things that bother our people. As a matter of fact, I have had a number of my employers contact the local OSHA representative and ask if he could come to the place of business and tell them what he need to do to be in compliance and were informed that if the inspector were to visit those premises and found anything in violation, they are bound to issue a citation.

Yesterday, Mr. Lowe, representing the U.S. Congress, cited section 21 (C)2 of the act:

Consult with and advise employers as to effective means of preventing occupational injuries and illnesses.

Mr. Lowe goes on to say:

It is clear that the law contemplates assistance to further the purposes of this Act. If an employer asks for advice at his plant, it should be given without penalty.

This, I think, is really the major problem as we see it, and the counsel with the chamber of commerce said that in his opinion, at least, section 21(C)2 does give the Labor Department authority to counsel with employers so they can in fact find out whether they are in compliance without going through the rather uncomfortable mechanism of being visited, finding certain infractions of the rules, citations issued and then going through all of this redtape.

Would you comment on that, please?

Mr. GUENTHER. If I can start with the beginning of your comments, first of all, we recognize that there is a great deal of fear and concern. It seems to be in the great Midwest more than any place else in the country, if I may make that observation, which should be fairly obvious to you from your witness list.

Mr. HUNGATE. Freedom loving people.

Mr. GUENTHER. Freedom loving people, Mr. Chairman. Certainly for a program as new, broad and complicated as this one to get off the ground it is necessary for people involved and affected to be concerned about what they need to do with regard to the program.

From that point of view, we believe that the reaction across the country in the first year, the reaction of concern and desire to comply through what we refer to as voluntary compliance, has been an excellent one. Perhaps in certain parts of the country for various reasons the concern has, for whatever reason, gotten out of control and virtually reached the levels of hysteria.

In particular, in one State, in the State of Wyoming, we have spent a tremendous amount of time investigating a plethora of allegations and rumors with regard to us shutting down schools and putting "mom and pop" stores out of business, harassing ranchers and farmers, and a variety of other things.

We assigned staff officials in the region and compliance officers to investigate these allegations. We have found that virtually every one of them is without foundation in fact. We have put out a report to attempt to counter some of this publicity which is being generated. for whatever reasons, about the program.

We are very much concerned about allegations that we are putting people out of business, that we are forcing "mom and dad" grocery stores to install two toilets, or a variety of other charges that have been made which, upon investigation, in the particular instances turn out not to have occurred.

Mr. BERGLAND. Mr. Secretary, the real problem is that these small businessmen have neither the time nor the expertise to understand all the regulations that are published in the Register. It is one thing with General Motors, with a bevy of experts, but it is another matter when you have a small machine shop or an automobile dealer who does not have these kinds of resources at his disposal.

It is in this area that we run into enormous difficulties. Do you not think that under section 21 (C)2 that you are authorized by law to pay a visit to an employer who really wants to do everything that the regulations require but is afraid to ask for a visit because he says, "I don't know what to do. If I am visited, I am going to be cited."

Mr. GUENTHER. With regard to the authority given us by section 21(c), recognizing that 21(c) directs us to consult with and advise employers and employees and their organizations, it does not countermand the very precise language of sections 8 and 9 with regard to the presence of OSHA officials in any workplace.

As I cited in my testimony, please believe me, we have examined that language with a fine tooth comb to attempt to determine a method whereby we could provide more onsite consultation. However, our expert legal staff has been unable to provide us with a technique whereby we can in fact enter a workplace without triggering full enforcement procedures. It is for this reason we state in our testimony that we would support proposals to amend the act, to make it more possible for us to in fact engage in that kind of onsite consultation.

Having said that, even were we able to engage in more of that type of consultation, it is a big country, and our staff resources are somewhat limited. So it will be very difficult for us to go into every machine shop, garage, what-have-you, to consult onsite even if the law permitted.

We submit that while the full range of standards are imposing and difficult, that by and large in a small establishment the number of standards which are in fact applicable are relatively limited. With the

exception of some of the more complex areas, having to do with toxic substances, that sort of thing, they are not all that complicated and, indeed, any good manager ought to have a pretty good idea of what problems exist in his workplace.

He may go to any number of places for help, including OSHAand, again, I emphasize that a call to OSHA is not an instant signal to place your name on a list to be inspected. We have made this clear to our regional people from the very beginning. We do not list people who call us for help for inspection the following week. It may have happened in a couple of cases by coincidence, but it is very definitely not a program plan.

Mr. HORTON. Would the gentleman yield?

Mr. BERGLAND. Certainly.

Mr. HORTON. Do you feel that there is a need for legislation on the question of going in and having to issue citations? That does seem to be a pretty difficult situation. They want to get advice, to ask somebody to come in, but then, when the inspector comes in and finds a violation, he must issue a citation. It seems that is a rather difficult situation to face. Do you feel that we need legislation to correct the situation?

Mr. GUENTHER. As I have said, we would support an amendment to that effect.

Mr. HUNGATE. In line with this, the amount of the fines for violations, or the penalty, is that determined by your regulations or by statute?

Mr. GUENTHER. A combination, Mr. Chairman. The statute establishes broad basic rules, section 17.

Mr. HUNGATE. Does the statute fix the amounts?

Mr. GUENTHER. It does not fix the amounts. It establishes limits. Mr. HUNGATE. Does the statute provide the method by which a fine may be remitted at least in part or perhaps totally? There are ways in compliance where it can be reduced by a certain percentage; is that not correct?

Mr. GUENTHER. I will refer that to Mr. Mintz.

Mr. MINTZ. The statute provides the ranges within which the fines will be proposed by the Secretary. For example, in the case of serious or nonserious violations, the fines may be as high as $1,000.

In the case of willful violations, the fines may be as high as $10,000. The Secretary proposes the fines which may be contested before the independent Occupational Safety and Health Review Commission. Mr. HUNGATE. I am a defense lawyer. How low can they be?

Mr. MINTZ. In the case of a nonserious violation, there can be no fine at all.

Mr. HUNGATE. And what about serious?

Mr. MINTZ. In the serious violation, the act requires that a fine be proposed.

Mr. HUNGATE. Of how much?

Mr. MINTZ. There is no minimum. There must be a fine and it may be as high as $1,000.

Mr. HUNGATE. Hopefully, following Mr. Bergland's line of questioning, we could go in on the first occasion and on many things nonserious levy no fine instead of a fine and levy $1 even, on a more serious thing, if we thought it was an honest mistake or the man in good faith was going to try to improve?