times inspectors seem to have discretion on this; sometimes they use it and sometimes they don't.

In our area, our inspection comes out of the Omaha office, and when our business people call that office to find out about an inspector coming out preliminarily, so they can put in some of these requirements, the inspector right away informs them "If we come out and find any violations of the law, we are going to cite you for violations."

This doesn't seem to me to be the way the thing should be handled. This is their standard operating procedure. We have checked it several times.

One of the other basic faults in this law is that they treat giant industry, big industry, the same as they treat small indusry. I think the previous witness pointed that out.

It seems to me there could be different standards for heavy industry as related to small industry. In particular, in the homebuilding industry there should be different standards for a construction company putting up a high-rise or a skyscraper than for a homebuilder.

As those regulations read now, they are all one and the same. It makes the law ridiculous in many respects. In my statement I cite some of the reasons why this doesn't make sense at all.

Mr. HUNGATE. Are some of the requirements the same on a twostory building as on a 20-story building?

Mr. THONE. Absolutely the same, Mr. Chairman.

Mr. Bergland pointed out that OSHA has some discretion. They claim they don't have very much. I think they have a lot more than they have used in these rules and regulations that they have promulgated. I have introduced several of these bills to amend OSHA, as you members know. In my discussions, visits and consultations with the members of the Department of Labor, I find them most unsympathetic and I don't think they are understanding at all what is going on around America regarding the administration of this act.

As the previous speaker mentioned to this committee, I think they got a little bit of a message on the House floor the other day.

As Mr. Bergland pointed out, I don't think that was the right way to get to the merits at all, but the Findley amendment was about the only alternative that was available after they got full funding. But that was no way to correct the inequities of this law as I see it. I will answer any questions if there are any.

(The statement referred to follows:)

STATEMENT OF HON. CHARLES THONE, A MEMBER OF CONGRESS FROM THE STATE OF NEBRASKA

Mr. Chairman, in words as strong and as plain as I can make them, I want to emphasize that the Occupational Safety and Health Act of 1970 is ruinous for small business.

Everyone of us would like to reduce death and suffering due to work-related accidents. This goal can be reached without laws that take away our civil rights. This goal can be reached without regulations that are silly, ridiculous, costly and unrelated to on-the-job safety.

Here are some evil aspects of the law that are especially ruinous to small business:

An inspector from the Occupational Safety & Health Administration can come into a shop unannounced, allege a violation and levy a fine of $1,000 on the spot. Levying a fine without a hearing and without a judge or jury is certainly unconstitutional. The issue is being raised through the courts, but Congress must act now to right this wrong. If Congress waits while this issue is taken up to the

Supreme Court, thousands of small businesses will have already been forced out of business.

A firm in the First Congressional District of Nebraska, which I represent, has been fined $36,717. The firm didn't make that much money last year.

The law needs to be amended so that it will apply to the individual as well as to management. A company can issue orders to wear hardhats and issue reminders everyday. If an employee violates that order in the presence of an OSHA inspector, however, the inspector can do nothing to the individual but can fine the company. This situation applies not just in the area of protective clothing. A firm may be fined because an individual leaves a ladder not securely fastened, in violation of orders.

The OSHA law needs to be amended so that effective state and local agencies will find it easier to fill a productive role in the health and safety fields.

The OSHA law needs to be amended to give time for compliance. A safety engineer in my district suggests that the law should be rewritten so that it would be enforced now for those who employ more than 500. He suggests a 1-year delay for those employing 100-to-500, a 2-year delay for employers of 25-to-100, a 3-year delay for employers of 10-to-25 and a 4-year delay for those employing less than 10.

His reasoning for the delay is that the time is necessary for self-help, training and development of programs to prepare small employers. He declares that time is necessary to give equipment-makers a time to standardize their equipment and advise on what equipment can be updated.

This Nebraska safety engineer declares that it would take 15 qualified experts working three years to qualify business in our state for this bill. He points out that there are not 15 such qualified people in the state of Nebraska. OSHA regulations cover the fields of fire engineers, safety engineers, and industrial hygienists. In Nebraska, there are only a few good fire engineers, only a handful of safety engineers and not a single industrial hygienist. In other words, Nebraska business is being asked to comply with a law that is utterly beyond its

resources,

In addition to amending this law, we must demand administration of the law that is sane and sensible.

Present OSHA regulations require that there must be separate restrooms for each sex. Is this sane? Is this sensible? Does this promote the safety and health of employees? Of course not.

May I quote from a letter to me from the operator of a grain elevator in a town of 83 people in my district. He writes, "We have three employees-two male and one female-and one restroom. What small business can afford to spend $10,000 for remodeling and changes in order to comply?"

Is it sane and sensible for OSHA regulations to be against circular toilet seats and to demand that every toilet sea must have a part cut out of the front of it? Is it sane and sensible to enforce a law without educating the public as to the nature of the law? OSHA regulations consist of 247 pages of fine print. They incorporate by reference other existing industry standards that are unknown and unobtainable by the small businessman.

May I quote again from another letter about OSHA from my district, "I called Omaha this morning to ask the safety office to send an inspector to our place of business. We built a new building and wanted to comply with the law. When the man told me if he sent an inspector out and if any infractions were found we would be fined on the spot, I said, 'How un-American!'"

Another letter from a small business operator in my district. "Some consideration should be given to the situation in which a business is operated in leased quarters and a violation concerns the building itself. Under present conditions, the owner of a business could be liable for a severe penalty for not correcting a condition that is responsibility of the owner of a building. Time should be allowed for the necessary negotiations in such a case."

A letter from an operator of a roller skating rink in Nebraska town of 15,000 points out another problem. He points out that many of the rink's customers are of junior high age of younger. Experience has taught the rink manager that fire extinguishers must be up high enough to be out of reach of the youngsters on skates. OSHA regulations, however, demand that fire extinguishers be down low.

I read from another letter from a firm making tanks to water livestock. The small firm is in an unincorporated village in my district. Concerning OSHA regulations, the owner writes, "Words such as 'adequate' and 'sufficient' appear,

adding to the uncertainty as to corrective measures, if any, which should be instituted."

An owner of an implement firm in a town of 800 in my district writes me pointing out that OSHA regulations say that stairways must be capable of carrying a load of five times the normal load and not less than 1,000 pounds moving load. My constituent writes, "We don't have the slightest idea how to test our stairways."

A small businessman in a town of 3,000 in my district writes, "Our shop was built new in 1953. We have already spent several hundred dollars to try to conform, but there is no way! No doubt if an inspector would arrive today, he would put us out of business!"

The present OSHA regulations are not sane and sensible because they put the little one-man shop in the same category as giant industry and because OSHA regulations do not differentiate between various aspects of industries. There needs to be special OSHA regulations developed for small commercial plumbers, auto dealers, service stations, feed mills, etc. No regulation should be attempted until such specific rules are adopted.

The home building industry is one that is suffering because of being lumped in with the rest of the construction industry. Regulations that may be all right for the builder of a dam, a highway or a high rise office building are being applied to the man who builds one house.

Here are some of the regulations being applied to home builders. If there is a window opening in a house without glass in it and it is more than four feet to the ground, protection must be put up. Every stairway must have safety railing. In building a single story house, the builder must erect a safety railing and a platform around the roof. Big industry is active in the home building field, but most home building firms are very small. The National Association of Home Builders estimates that regulations such as these, if fully enforced, will add hundreds of dollars to the cost of a new home. This would not only be ruinous to consumers but also would force many small home-building firms out of business. I've talked about the law being bad and the administration of it being bad. One aspect of OSHA has me perplexed as to whom to blame-the writers of the law or the interpreters of it. OSHA has said that if only the immediate members of a family are engaged on a farm or in a shop, there are no employees and therefore OSHA rules don't apply. OSHA has also said, however, that if one farmer or shopkeeper helps another then the employer-employee relationship applies and therefore OSHA regulations apply, even though no money changes hands. In other words, OSHA threatens to wipe out the centuries-old tradition of neighbor helping neighbor.

At least 123 members of the House of Representatives have joined in sponsoring one or more amendments to the OSHA law. This evidence that the law desperately needs correcting. This is also evidence that the lawmakers are introducing bills to seek correction that should have come administratively but have been impossible to get from the present functionaries at OSHA. Mr. Chairman, I submit there is evidence that thousands of small businesses will be forced to close unless there are both legislative and administrative changes at OSHA.

Mr. HUNGATE. Mr. Conte.

Mr. CONTE. I pointed out before you arrived that you may feel they have discretion, but during the appropriations hearings on OSHA's budget, we asked a lot of questions of the Secretary. He said:

Indeed, part of the problem seems to be that there are many employers who wish us to conduct an inspection free of charge, to come in and say, "If we were there for real, we would do this, this and this." Under the terms of the Act there is just no way we can do that.

Mr. MICHEL. "You are bound lock, stock and barrel by the language of the Act to do some of these things that we have been getting the most complaints about from some of our people."

I know you were a little upset with me the other day on the floor, but I did a lot of work in committee on this thing and I felt it was the wrong way to go about it, the way they did it. I was looking forward to these hearings. I think these are healthy. They will send a message downtown and to the legislative committee that has jurisdiction in changing the law.

But let me tell you they are getting pressure downtown from the other side. Here is the AFL-CIO executive council statement of February 18:

We have weighed the President's words against his deeds and found them wanting. The record is one of foot-dragging, flabby enforcement, adulteration of special provisions of the Act setting forth specific rights and protections for the employees.

Congressman Daniels of New Jersey:

Now the hopes of this Congress and their constituents have been undermined by the inept and lax administration of important parts of occupational safety and health law. The spirit of protecting the lives and health of our workers is barely discernible.

So they are also getting it from the other side.

I agree with you that a lot of these things require change, but I think the Labor Department is bound by the act, and Congress has to share some of that responsibility.

Mr. THONE. Unquestionably. There is no doubt that in some areas their hands are pretty much tied. As I read that act, and I have a couple of people in the office who have done a lot more work on it than I, they do have some discretion they are not using.

As a matter of fact, the chairman of the Select Committee on Labor, Mr. Daniels, has written me that the Labor Department could, if it wanted to, promulgate different regulations for heavy and light construction. They have chosen not to do so.

It is stupidity, in my opinion. I have tried to tell them that but they haven't begun to receive that message.

Mr. CONTE. They will be up here Thursday and we will try to explore that.

Mr. THONE. But I do agree with you that the act is pretty harsh in many respects. Of course, Labor can only administer what the act says. In those areas, I think Congress has to take a sympathetic and intelligent look. There should be some modifications. But they have more discretion down there to make this a sensible act than they have used, in my opinion.

Mr. CONTE. I want to compliment you on a fine presentation.

Mr. THONE. Thank you. I didn't get as upset on that matter the other day as I might have appeared to have been, I assure you. Mr. HUNGATE. Mr. Smith?

Mr. SMITH. I Would just note in passing I am in agreement a good bit with what he has said.

It says in section 10 that if they believe he has violated a requirement they will notify the employer by certified mail of the penalty, if any, proposed to be assessed. Obviously, "if any" means something. It must mean they don't have to levy a penalty.

Mr. THONE. They have been rather arbitrary in our area, without a question of doubt. Overzealous may even be a better choice of words. Mr. HUNGATE. Mr. McKevitt.

Mr. McKEVITT. You have been one of the forerunners so far as OSHA and your amendments are well known. What would you like to see principally as far as immediate changes are concerned in the law?

Mr. THONE. No. 1, I think there should be an abatement period. No. 2, I think there should be a differentiation between heavy construction and light construction.

Mr. McKEVITT. Could you state why? This question of the difference between light and heavy construction is coming up more and

more.

Mr. THONE. Because there are different risks. There are different safety and health requirements that are needed when you build a highrise than when you build a home.

What you are doing with some of these senseless regultions on homebuilding is unnecessarily driving up the cost from $800 to $1,200 a home in my area. These rules don't have any relation to safety and health.

Mr. McKEVITT. Would you like to point out examples of where you see abuses of overregulation or overcontrol on light construction? Mr. THONE. I have some in my statement.

If there is a window opening in a house without glass in it and if it is more than 4 feet to the ground, protection must be put up. Every stairway must have safety railing. In building a single story house the builder must erect a safety railing and platform around the roof.

Big industry is active in the homebuilding field but most of these, of course, are small builders. The National Association of Homebuilders has a whole list of horribles along this line which don't have a direct relationship to the safety and health of the employee as they would if you were building a skyscraper or something considered heavy construction.

So homebuilders out my way say they needlessly force the consumer to be paying all of this extra money for homes when it doesn't serve a purpose. There are a lot of other examples.

Mr. McKEVITT. What are some of the others you would like to point out?

Mr. THONE. I can send you a memo. We have a whole list in the file. I can't come up with them right now. There are quite a few, especially in the homebuilding business.

Mr. McKEVITT. Do you think this would be a considerable increase in costs for the homebuilding business, to put all of these standards in? Mr. THONE. They say from $800 to $1,200 a home in my area. Mr. McKEVITT. Mr. Chairman, I want to compliment the Congressman because he has had a great concern about this.

I want to thank you for your testimony.

Mr. THONE. Thank you.

Mr. HUNGATE. Mr. Bergland.

Mr. BERGLAND. I want to commend our colleague for calling attention to the need for a distinction between heavy and light construction. If the building is 800 feet high, the risk is much greater than if it is 8 feet high.

I commend you for your attention.

Mr. HUNGATE. I appreciate your testimony on problems of discretion in the law. You know there is an age of discretion and programs some of the departments haven't reached that age yet.

I would think certainly there is discretion in the establishment of regulations. If you promulgate a regulation I suppose you could unpromulgate it.

In the textbook case of law school it is there shall be no blood-letting on the streets of Bologna, and a doctor bled a man to treat him. Of course, he was not prosecuted.