be rewritten to retain the goal of further protection. But my amendments would end or lessen the effects of provisions which have proven to be completely unworkable and unfair to the employers, especially the owners of small businesses, who, struggling to keep pace with competition, are laboring under the additional paperwork burdens imposed by Federal wage and price control requirements, equal employment opportunity requirements and myriad other such Federal laws.

Businesses, as a result of the 1970 Occupational Safety and Health Act, are deluged with a multitude of so-called health and safety requirements with which they must comply or face sanctions that include civil and criminal penalties and even the closing down of their businesses.

These requirements have been imposed upon them en masse, without any administrative determination whatsoever that they will improve occupational health and safety, that they are necessary or even that they are the best way of accomplishing the desired result. I am speaking of what the act denominates as "national consensus standards." These are various criteria and guidelines which in the past have been set forth by a number of private organizations. The act Congress passed, in effect, made these rules the law of the land without a prior specific review of them to see what they do, how they should be applied, or whether or not they are adequate. As a guide or base point, these standards could serve a useful purpose, but the result of adopting all of them, without an administrative rulemaking procedure, is that the employers of the country have been required to find out what the rules are and which ones-if any-apply to them, and to expend time and money in trying to put them into effect when the employer very well knows in many cases: first, that they will not improve employee safety, or second, there are better ways of doing it, or third, there are less expensive ways of doing it, or fourth, that all three of these statements apply to the particular rule with which he must comply. The final irony is that, sometimes, employers simply find it impossible to comply.

I mentioned some examples in my previous statement, and it is necessary to mention examples again because it is so evident from these relatively few examples that there must be thousands of other instances of similar nature which have been thrust upon employers by this act, detracting from, rather than adding to. the purpose of the law.

Employers are required to install coat hooks in toilet compartments. In the first place. I do not believe this qualifies as a "safety" requirement. Secondly. even if it does it has been applied to businesses where the employees have no use for such hooks and the employer knows they will not be used.

Under another rule, employers are required to color code switches red and green even though they may already have their plants and equipment color coded with other different colors which their employees have been using for years and understand. To change over to red and green and the resulting loss of equipment time will cost many employers thousands of dollars.

A similarly ridiculous regulation imposed upon farmers requires every farm truck to contain a first aid kit and a fire extinguisher. As one of my constituents pointed out, neither is likely to be there "the night after we mount them in the vehicle because they will be stolen." He further points out that, in my State of Nebraska, the first aid kit required will cost $16.

Protections for window openings in building construction, which may be appropriate in the construction of multi-storied buildings, are required for all construction-even a one-story residence where the distance to the ground is no more than a few feet. The employer knows there is no reason he should have to spend his funds to comply, but the regulations make no provision for such in-business differences.

A load moment computer is required to be installed at considerable expense on all existing cranes. The ostensible purpose is to advise when the crane will tip over, but the requirement fails to reflect the status of the essential factorthe base of the crane-with the result that it obviously does not fulfill the intended purpose. Nevertheless, the act required the Secretary of Labor to put this regulation into effect.

Under the national concensus standards, which the 1970 act required the Secretary of Labor to adopt, farmers must install a roll bar on their tractors. However, no provision is made for the many tractors on which the roll bar cannot be attached, or for those to which it can be attached but the place of attachment is too weak to allow the roll bar to hold up in a rollover. Neither

is there any consideration given to the fact that the roll bars, which in my State I am advised, run from $200 to $250 each, will in many instances cost more than the tractor itself is worth. Nor is any allowance made for the physical area or conditions where the tractor is being used or might be expected to be used. Many of my farmers advise me that their tractors are never driven on anything but level land and blacktop roads. Why impose the same requirements under these conditions that are imposed on tractors used on hilly or terraced terrain, or under other circumstances which might logically lead to an upset? Why? Because, as in the other cases, without any idea that Congress would ever make it an all-encompassing requirement, some safety-standard-setting organization once set it forth as a good idea, thinking, of course, about specific tractors, probably new ones, and specific conditions where an effective roll bar might prevent death or injury. I ask: Is it in the farm employee's best interest to have him believe that he is protected by the roll bar that will not protect him, or the crane operator to believe the load moment computer will protect him when it will not? I think not. It is better that the employee drive the tractor or operate the crane with the caution that full knowledge of the facts gives. It is far better for us to be fully assured that every dollar we require an employer to spend is for a needed and useful safety requirement in his particular field, and that this determination is made pursuant to the usual rulemaking procedures prescribed by the Administration Procedures Act.

Right now, many of the requirements employers must meet are known to be ones which will be replayed at a future date, resulting in loss of the investment made in meeting them. The conference report called these national concensus standards, only interim standards, and the act makes provision for their later replacement.

The Senate report said of these "national consensus standards" which were foisted upon employers:

"These standards may not be as effective or as up-to-date as is desirable, but they will be useful for immediately providing a nationwide minimum level of health and safety."

I repeat, the majority of the Labor and Public Welfare Committee concluded that these standards, which the law required to be put into operation immediately, likely were not the best and were probably out of date.

Nevertheless, the law requires the employers to spend the time and the money necessary to understand them and to put them into effect.

This does not, in my judgment, promote respect for the law in this country, in general, and specifically will work against the improvement of employee health and safety and further constitute an intolerable burden upon employers.

Or take another example of the inequities of the law. Employers are not given actual notice in the mail that they must take various required and specific steps in their business operation, as they are with respect to withholding taxes, for instance. Instead, they are supposed to read the reams of requirements, which the law says the Secretary need only publish in the Federal Register, and then try to figure out, at their own peril, which ones apply to them. Parenthetically. I might say here that there is no requirement of notifying the employers that they are even expected to meet certain requirements which they will find in the Federal Register. It is "presumed" that every person in the country who has an employee and is thus an "employer" knows this and can and will do it. For the man who is a carpenter by trade and employs a helper, the pharmacist who has his own pharmacy and an employee to help him or the farmer with hired hands, for instance, we are talking about something which is too much to expect. Yet it is what the law requires.

What happens when one of these people writes the Secretary of Labor wanting to know just what he or she must do? As an example, I have a letter before me from the Labor Department responding to such an inquiry. It is short and to the point. I quote:

"Your request for a visit to your shop *** can be arranged in the near future. However, if a compliance officer visits your place of employment, he is obligated to conduct a complete walk around inspection. *** If he finds any alleged violations it could subject the company to assessment of monetary penalties. If you still desire a visit under these conditions, please let us know." This person requested assistance in complying with the act and received in reply a threat of the imposition of sanctions, together with a suggestion that he reconsider his request. Does this lead to the improvement of the health and safety

of employees? Hardly: But it is the position in which the 1970 act puts the Labor Department. I think we need an affirmative provision in the act to encourage voluntary compliance, with the assistance of the Labor Department. That assistance should include interpretations of rules, an indication of which rules apply and how to comply with them, and flexibility for the Department, if it finds the employer is out of compliance at the time of his request for assistance, not to institute sanctions. After all, that is the reason the employer seeks and needs help because he believes he may not be in compliance and because he wishes to obey the law.

My bill seeks to give us a law which employers, employees, administrators, courts, and the public will respect. Without such respect, this Occupational Safety and Health Act will fail to achieve its purpose.

The amendments which I propose as the "Occupational Safety and Health Act Amendments of 1972" are as follows:

First. An amendment to exempt small employers, both agricultural and nonagricultural, from the act. I propose to exempt businesses of 25 or fewer employees from the rigors of this national safety law. Congress has exempted businesses with 25 or fewer empoyees from the Equal Employment Opportunities Act, which we have recently had under consideration. The same reasoning which sustains that exemption supports the exemption I propose for empoyers under OSHA.

My perusal of the hearing records in the Senate and the House in considering the 1970 act indicates little attention was given to this question, and I assume the reason is that the witnesses, other than those from the administration, were mainly representing big business and big labor while the corner druggist and the small farmer could not afford to appear, even if they knew of the hearings and had an idea what was in store for them, which they did not.

The administration bill in both Houses did have an exemption for small employers, but that practical and precedented suggestion from the Department of Labor was completely disregarded in the reported bills.

I did find a statement in the hearings by a representative of one of these private setting organizations, whose relations are with big business, who said that he saw no reason for the exemption of small business. But when that statement was made, the witness was talking about the bills then before the committee, which were quite a bit different from the final act insofar as their effect on a small businessman is concerned. He, of course, was also speaking without the benefit of the experience which has developed since this act became law.

When then Secretary of Labor Shultz testified before the Senate committee, he supported an exemption for small business and he mentioned the lack of experience with the law as one reason. The last year has certainly proven the administration right in that regard, and I think that if we are going to have the unreliable, "trial and error," off-again-on-again, standard setting procedure the present law provides, we should exempt small businesses, at least until such time as the bugs are worked out and the standards have been shifted and sifted and made more reasonable in form. It is bad enough to subject any employer to this sort of standard setting, but, in my opinion, these people who are in business for themselves with only a couple of employees simply cannot afford even to try to keep track of what the requirements are. Imagine a man in business for himself a TV repairman with one helper, for example. As an employer, he stays up all night to read up on the safety regulations, with which he has heard he must comply, only to find out that the coat hook in his bathroom does not measure up to national standards. How many more nights is he going to stay up to read these volumes?

Why should a small farmer have to install some alleged safety device on his tractor when he and the same employee have been driving tractors over the same farmland for the last 15 years and can do it with their eyes closed? Those regulations are for big companies and big farming businesses where there is a constant turnover of employees, who work on different equipment from day to day, who are under different supervisors and are generally participating in our automated society.

I mentioned the witness who said he saw no reason why small employers should not be covered by the act. I would have asked him why, in that case, the law should not be equally applicable to the man who works by himself without employees? That question was not asked; yet neither the witness nor those who eliminated the small business exemption suggested these requirements

should apply to one-man businesses. Against the background of that unanswered question, I feel the reason for the small business exemption is brought sharply into focus, and the action of Congress is shown to have been quite arbitrary. Congress many times in the past has recognized that small business should and must, be distinguished from big business.

Second. An amendment to delay for 1 year the effectiveness of the act with regard to the employers who have more than 25, but fewer than 100 employees. In my part of the country, at least, it is going to be impossible for businesses in the category to meet the requirements of the act overnight. Not only would the financial burden drive many out of business, but, for those who could afford the modifications, there simply is not the expertise available to accommodate the overnight changes. One of the few qualified safety engineers in Nebraska advises me that the act covers matters requiring the expertise of fire engineers, safety engineers and industrial hygienists. Yet there is not a single industrial hygienist in the entire State, only a few qualified fire engineers and almost no safety engineers or safety consultants to aid trade associations and small employers in bringing their operations into compliance.

He estimates it would take 15 qualified people working 3 years to prepare Nebraska for the act through training academies, actual inspections and close work with trade associations. But there are not 15 qualified persons in the entire State.

Third. An amendment to section 6 of the law which required the Secretary of Labor to put all these national consensus standards into effect without complying with the usual rulemaking procedures. This amendment would not set aside the procedure which Congress elected but, instead, would require the Secretary of Labor to evaluate all of the regulations, distinguish the various facets of a given general form of business, and determine if the rule should apply to each facet. Experience shows that requirements which may be reasonable for a "hazardous" form of business can be oppressive when applied to a "nonhazardous" facet, and that the current requirements often fail to make appropriate distinctions.

In the construction business, the difference between "heavy construction" and "light residential construction" is a case in point.

The farming industry provides a different sort of example. Here, the requirement of a half-inch mesh screen shield on all motors and power ventilating fans may be appropriate for some enterprises, but in the poultry business, the feathers and down would completely plug such screened outlets in a matter of 2 or 3 days. Such arbitrary rigidity cannot possibly be so beneficial to health and safety as to outweigh the damage it does to the peoples' respect for law and lawmakers. Fourth. A further amendment to section 6 to require the Secretary of Labor to publish as to each present and future rule, the estimated maximum and average cost of compliance, and to determine that it is in fact possible to comply. I do not see how anyone can quarrel with the idea that the Secretary should at least know the cost and feasibility of compliance and second, that the employer should be given some idea of what the cost will be, as contemplated by the Secretary, and assured there is a device or procedure available that will permit him to comply. There is no such provision in the law at present.

Fifth. An amendment to require the Secretary of Labor to provide technical advice and consultation to employers of 100 or fewer employees to assist them in complying with the act.

I have chosen the figure of 100 or fewer employees to denominate those which will receive this help. As I said, the Equal Employment Opportunities Act presently exempts all employers from its operation if they have 25 or fewer employees. I propose the same exemption for OSHA. However, I do feel that for small businesses in the 25 to 100 employee bracket, we are going to see compliance with the requirements much more quickly and easily if they get some help. I quoted earlier a letter received by one employer from the Labor Department when he asked for help. He was told that the result likely would be a finding that he was in violation of the act, together with the imposition of penalties.

Large businesses may be able to afford lawyers and engineers to advise them on what is required and how it should be done, but these small employers cannot. As long as Congress included them in the act, it is incumbent upon Congress to help them, particularly in view of the imposition of these consensus standards which the Committee Reports call "out-of-date" and subject to almost immediate replacement. This is the fair way of getting employees in these small businesses covered.

Sixth. An amendment providing that as to these "national consensus standards" or any other non-emergency requirements, they shall not have equal status with other requirements which were adopted in the usual rulemaking proceedings, by specifying that no penalty or other action will lie as to such deficient requirements unless the Secretary has seen to it that the employer actually receives a copy of the requirement and was given 30 days in which either to comply or to request an administrative review.

Right now the occupational safety and health law provides only for publication of these requirements in the Federal Register and when the requirements were not even adopted pursuant to the Administrative Procedures Act, it is not fair to expect the employer to know of them and to have complied with them the day an inspector happens to walk in.

In "Additional Minority Views" in the House, Representative Scherle and five other committee members said of the Occupational Safety and Health Act provisions:

"When Congress passed the Administrative Procedures Act we recognized the importance of requiring government agencies to follow uniform procedures * * * that compelled fair methods of developing and enforcing regulations."

In the reported bills and the act, however, Congress cast aside the procedures it had established, and, in so doing, cast aside the fairness which the "adversary" agency rulemaking procedures were intended to insure.

The procedure in the act which gave the Secretary authority to block a national consensus standard was of no merit. To be able to use it, the Secretary, on his own volition, was required to isolate a specific standard out of the multitude and to make a judgment that there was no possible way it could be of benefit. There is no procedure specified and, if he did make such a judgment, the Secretary had to do it without the benefit of a hearing or other airing of the pros and cons. He also must have done it in face of the committee report language which said Congress knew the standards were likely deficient, and contemplated their promulgation, regardless. In effect, he would have been overriding a congressional determination.

Now that these requirements have been put into effect without the usual procedures and we have observed the results, I propose to inject some fairness by my amendment. I do not think Congress should have directed that the Administrative Procedures Act be abrogated, and this amendment is an alternative to repealing the rules adopted pursuant to the act's "irregular" requirements.

Under my amendment, by publishing the rules he believes are proper, and adopting them in the usual form prescribed by the Administrative Procedures Act. the Secretary can relieve himself of the responsibility of actually sending each employer the regulation and giving the 30-day period for corrections.

I hope the Secretary will subject each requirement to the test of the usual agency procedures, if this amendment is adopted, and I believe he will.

I cannot accept the reasoning which supports the different procedures for "national consensus standards" on grounds they were adopted by the private agency under circumstances where interested parties could participate. There was nothing involved in the events surrounding adoption of these standards by the private standard-setting agencies which gave notice to every affected employer in this Nation that what the agency was doing was at some later date going to become a binding Federal rule, adopted without the usual administrative procedures for nationwide application. Furthermore, if some employer had suspected that might happen, and had sued the private organization to get the standard changed because it might later be a Federal rule, that employer would have landed on his ear outside the courthouse. Finally, given the "nonmandatory" nature of the rules adopted by private standard-setting agencies, many employers would not have taken the trouble to participate, even if they knew of the proceedings.

Seventh. An amendment to compensate employers for the additional expense of having to comply, initially, with one rule, and then having to comply with a different one when the first one had not been adopted pursuant to the Administrative Procedures Act.

At the beginning of this statement. I quoted the incredible statements in the committee reports indicating the committees knew many of the initial requirements imposed upon employers were probably out of date and were not the proper ones, with the result that they later would have to be replaced. This means that an employer can be required to install one safety device by the rules Congress required to be put into effect and then will have to take that device off