or alter it to comply with later substitute rules adopted under normal procedures. If those normal procedures had been followed in the first instance, they likely would have resulted in the correct requirement being adopted initially. I believe the Federal Government, not the employer, should pay the extra expense in such instances.

The Department of Labor submitted to both committees a 1968 Labor Department Report on the status of safety standards adopted by private organizations— page 1444, Senate hearings. That report clearly stated:

"(1) 32% of the standards were 10 or more years old.

(2) 28% of the standards were 5 to 10 years old.

(3) Only 40% (were) considered current.

(4) In the first two categories, 60% were in need of ‘revision, updating or faster action.' In the second category, 14% would pass out of the 'current' classification 1969.

(5) It can be anticipated that the current backlog will increase."

This is the background for the admissions in the committee reports and the reason the additional costs of meeting two or more safety changes instead of one must be a Federal obligation. It is also another reason for the exemption of small business from this act, as I propose, and it fortifies the arguments for most of my other proposed amendments as well.

My amendment would not apply to cases where the replacement requirement could not have been adopted initially, as in the case of newly discovered procedures or devices. It also does not apply to cases where the normal rulemaking procedures were followed in adopting the first requirement.

Eighth. An amendinent providing that if the usual administrative procedures for adoption of rules were not followed, the failure to comply with the rule cannot be used as evidence of negligence or wrongdoing on the part of the employer. It is a usual rule of law that where a person is injured and he can prove a relationship between his injury and the absence of compliance with a governmental safety requirement, the fault of the person who failed to comply is presumed, so that the burden is upon him to prove he was not at fault. In the case of the safety rules which were not adopted pursuant to the usual governmental procedures, it is my belief that this rule of evidence should not apply. It appears it could cause unnecessary litigation and should be answered in the same law which created the problem.

Ninth. An amendment to relieve employers from the absolute liability pro

visions of the act.

At present many of the regulations require the action of employees to implement them. The employer may have done everything in his power to get the employee to do what he should, but if the employee fails to do so, the employer is still held responsible and subject to fines or the closing of his business.

My amendment would permit an employer who is assessed a penalty under the act to show that he has posted notices and exerted all reasonable efforts in accordance with rules to be adopted by the Secretary to cause his employees to comply with the regulation.

If the employer cannot establish that he did this, he will still be held responsible, but he should have this right.

Tenth. An amendment to provide that no employer shall be responsible for fines and other penalties under the act if he can prove that the requirement he is alleged to have violated would not have effectively constitute an improvement of the health and safety of his employees.

Particularly because these consensus standards were adopted without following the Administrative Procedures Act, there are many requirements which clearly do not effectively improve health and safety at all-again I come back to the example of the bathroom coat hooks.

Additionally, there are many requirements that may appear necessary when trying to set up national guidelines, but when a specific employer in a specific factual situation sees them, it is clear to him and his employees that compliance will not do a whit of good for employees safety and health in his given factual situation. As a matter of fact, in many cases the employer may have a safety device which he has chosen to fit his specific needs and which is far superior to the one adopted by people totally unfamiliar with what this particular businessman actually has or is doing. I do not think it takes any imagination at all to be able to see why the act is hopelessly deficient without the specific availability of this defense.

I would hate to learn that an employee has been hurt or killed by a machine which had had an effective safety device removed in order to install one required by a national standard which did not take into account vital distinctions in a particular employer's operation.

Eleventh. An amendment to permit the Secretary, where appropriate, to make provision for initial medical exams for employees and followup exams thereafter at periodic intervals. This will assist the recordkeeping proviso of the bill and enable the employer and the Secretary to better ascertain the effects of a particular job upon employee health.

Twelfth. An amendment to aid the purposes of the act by permitting the formation of employee safety committees to identify areas of concern at a particular business and to endeavor to find the best solutions for their health and safety.

Although this seems a logical and beneficial way of particularizing employee health and safety, other laws, particularly the National Labor Relations Act, appear to prohibit it or to establish preconditions. Thus, it is necessary to grant specific authorization to permit the employees to so participate in order to further the purposes of the Occupational Safety and Health Act.

Thirteenth. Last, an amendment to assure the earliest compliance of employers with the safety and health requirements by making available to the Secretary of Labor, in the case of an alleged violation, the option of entering into an agreement with the employer for prompt compliance, in lieu of using the present provisions and imposing a penalty for having failed to comply.

In some cases, to protect himself legally under the present act, an employer who learns he is believed not to be complying with an applicable standard is deterred from prompt compliance because to do so may constitute a tacit admission that he was out of conformity, which fact can be used against him in imposing penalties and sanctions.

If such an employer was not willfully violating the act, the best way to achieve the purposes of the act may well before the Secretary to forego collecting the penalty or imposing other sanctions in exchange for the employer's prompt agreement to do what is necessary. This procedure is common in other areas, and in this case, besides accomplishing the change in the shortest period of time, it may avoid a shutdown of the business and loss of income to the employees. Such an amendment could also avoid unnecessary expenses to the Government in litigation and in trying to convince a court that the employer was not in compliance.

My amendment does not require this procedure; it only makes it available as a tool to the Secretary of Labor for use in appropriate cases.

I will, of course, welcome any cosponsors who find my bill suited to the relief of their own constituents, as I strongly believe many will. And even those whose constituents have not yet felt the injustice of its provisions will, I believe, share with me a concern for making this act respectable law.

Abraham Lincoln once said, in a speech at Springfield in 1837:

"I know the American people are much attached to their government. I know they would suffer much for its sake: I know they would endure evils long and patiently before they would ever think of exchanging it for another-yet, notwithstanding all this, if the laws be continually despised and disregarded * * * the alienation of their affections from the government is a natural consequence.

As lawmakers entrusted with the duty of securing the common good of all and living in a time when disrespect for law is of growing concern, we can ill afford the luxury of enacting legislation which imposes arbitrary, capricious, and unnecessary burdens upon the people, further alienating their affections from representative government. The reticfying of this Occupational Safety and Health Act may well become a major test of our good faith in this regard. Mr. HRUSKA. Mr. President, it is with tremendous interest and much sympathy that I listened to the remarks of my distinguished collague from Nebraska concerning the Occupational Safety and Health Act.

My mail has been heavy with complaints about the unfair application of this law, about the way that small businessmen have been harassed. These are complaints from sincere, hardworking businessmen who have no quarrel with improvements in safety and working condtions, but who also know that the application of this law has produced true chaos and heavy burdens.

Senator Curtis' proposed amendment to this act may not be in its final form, but it will bring about a thorough discussion of all the points that need to be raised so that this law can be made workable. It is with these thoughts in mind that I have agreed to be a cosponsor of his bill. It is my hope that quick action will be taken.

Mr. HANSEN. Mr. President, I am pleased to join with my colleague Senator Curtis in sponsoring this important legislation. Full credit needs to be given to Senator Curtis for his full recognition and keen analysis of the significant problems that have come forward from the Occupational Health and Safety Act which was passed by Congress in 1970.

As my colleagues will remember, this legislation was passed by Congress and signed by the President with the intent of improving the working conditions of American employees. I fully support and endorse this objective and I voted for the bill on final passage after the Dominick substitute was tabled by a vote of 41 to 39.

However, Mr. President, the Occupational Safety and Health Act has turned into a nightmare for the small businessman.

As implemented by the Department of Labor, many small businessmen in my State are asking if the objective of the Occupational Safety and Health Act is to eliminate work, not improve working conditions for the employee.

Mr. President, I think it is extremely unfortunate the act has been administered and implemented in a way that has created such a burden on small business. The alarming part of this is that the original legislation was not intended to be oppressive to small business. That was not the intention. But it has been the result.

The problem seems to lie with the regulations that have been promulgated by the U.S. Department of Labor and the manner in which the act has been administered in the several states. It is in this area where my constituents are facing real problems and I am most sympathetic to their dilemma; thus the Curtis-Hansen bill.

Unfortunately, small businesses-with only a few employees-simply do not have any way to go through thousands upon thousands of words of regulations in order to try and find out how and why and where their businesses are not in compliance; and, more significantly, in a number of instances already called to my attention, these same businessmen will not be able to put together enough capital to bring their businesses into compliance with the new regulations once they do learn where they are in violation.

For example, Mr. President, how many of my colleagues had any idea that there would be seven pages of Federal Register regulations on stepladders alone as a result of this act?

This, to my mind, avoids the real intent of the act-safety for employees-and only adds an intolerable extra layer of unneeded, and sometimes, unfair bureaucracy.

Mr. President, the legislation which I am joining with my colleague Senator Curtis is sponsoring would amend the Occupational Safety and Health Act. It would not disturb the basic concept of that act, but it would reorient the thrust of the legislation to one of education for the employer and employee and help the employer come into compliance with the Department of Labor's regulations.

Our amendment to the act would redirect enforcement to assist the employee in situations where major problems exist, not harass the small businessmen. I am pleased to join in this effort and hope that it will receive favorable consideration so that the original intent of the Occupational Safety and Health Act can be carried out.

Mr. President, on Saturday, February 26, 1972, Senator Curtis and I met for over an hour with the Secretary of Labor to inform him of the hardship which rules and regulations promulgated by the Department is working on the citizens in Wyoming and Nebraska. In my opinion, many of these standards are uncalled for and do not lead to healthier and safer working conditions for employees.

I urged the Secretary to institute a program to inform all employers of the provisions of the law and the rules and regulations and to direct labor officials to work with employers to protect their employees rather than harassing employers to take action which has little if any, relation to employee health and safety.

The Secretary recognized that a problem exists in the application of the Occupational Safety and Health standards to small employers. He assured me that the

Department is now working to correct this problem. The Secretary promised to arrange for labor officials to visit cities in Wyoming to inform employers of the new standards and exchange views with them.

For example, a meeting is set for Riverton on March 16.

The Secretary indicated that it was the intention of the Department to work with employers and not to intimidate them and that he would work to see that this policy is carried out in the field.

Recent developments have convinced me that the Occupational Safety and Health Act of 1970 must be amended to correct inequities. If left unchanged, I believe many small businesses will close and their employees will be out of work. Therefore, Senator Curtis and I introduced legislation following our meeting with the Secretary of Labor to remedy the situation.

Our proposal would exclude all employers with fewer than 25 employees from the provisions of the act. All employers covered by the act would be given a 1-year phase-in period to comply with the law.

It would require the Secretary of Labor to make certain determinations before adopting a new standard and provide for flexibility in the application of the standard.

In enforcing the standards, the Secretary would have the burden of proof to show that negligence or wrongdoing of the employer arose out of the violation charged.

Our proposal would also provide the employer with four affirmative defenses to charges that he is in violation of the act.

All Americans support healthy and safe working conditions for our workers. I regret that legislation intended to promote the health and safety of employees is so broad and new standards so inflexible that it has become an unreasonable and unnecessary burden. The application of standards not resulting in healthier and safer working conditions in a specific case only serves to endanger the survival of the business, to cause the loss of jobs by employees in that business, and to increase costs to consumers.

I hope that the Secretary of Labor will do what he can to mitigate the burden and I intend to do everything I can to see that the Congress enacts legislation which will provide a permanent solution to this problem.

Mr. HUNGATE. Mr. Smith?

Mr. SMITH. I also think it was a well-documented statement, and I thank you for all of the time it took to bring forth situations which are similar to the ones we have been hearing about all morning and which were incorporated by reference. Certainly, it is preposterous that an ordinary employer would be required to look through the volumes of regulations that were incorporated merely by reference. in an effort to try to find what he is expected to comply with.

Mr. HUNGATE. You might as well give him a dictionary as far as giving him any guidance with all of these regulations.

Senator CURTIS. Well, I suppose it would be totally impossible for most employers to ever locate these books. I have been informed since I have been in the room that one publication that was incorporated by reference has been out of print for 30 years.

Mr. HUNGATE. Mr. McKevitt?

Mr. McKEVITT. I want to thank you for appearing here.

How is your mail running in Nebraska, as far as this problem is concerned?

Senator CURTIS. The letters are so hot the mail comes in "smoking." Girls have to almost put on gloves to open the letters.

I can't give you the exact number here and now. I meet it when I go home, every place I go, whether it be social occasions or meetings called for other purposes. People are afraid. Now, some of them have already been cited, but others hear what happens to someone else, and that is just as real.

I have been informed by my executive assistant, that the letters are in the neighborhood of 3,000, those that we received.

Mr. McKEVITT. Would you say it is one of the most troublesome issues, as far as your career as a Senator?

Senator CURTIS. This is my 34th year in Congress, and I have never seen anything like this.

Mr. McKEVITT. We had the same testimony from other Members of Congress this morning. It is a very emotional situation. Some say it is even more emotional than the busing issue at the present time. I notice the same thing in my State.

What do you foresee as possibilities in the Senate so far as your amendments or your bill is concerned?

Senator CURTIS. The chairman of the Senate Labor and Public Welfare Committee promised me hearings, oversight hearings. A date has not been set yet, but the staff reported back to my office, and I later confirmed it in a conversation with the chairman, that he would give me hearings.

Mr. McKEVITT. The House seems to press this in the Findley amendments. I was wondering if you foresee any floor action in the Senate? Senator CURTIS. I would anticipate-and, in fact, I am quite surethat if the Senate Appropriations Committee does not bring out a bill with the Findley amendment in it, one will be offered on the Senate floor.

Mr. McKEVITT. Have you had any complaints from the Labor Department as to the restrictions or the tough language of the bill itself, and have any expressions been made to you by members of the Labor Department as to the need for changes in the law?

Senator CURTIS. There has been some indication recently that they were giving expression to the fact that possibly some changes in the law ought to be made.

I believe that the Labor Department, at least part of it, supported the Dominick bill in the Senate. That had a small-business exemption in it. It had a provision that if an individual met the requirements, that ended it; there could not be any citation or fine.

It also contained a provision that if someone could prove that what they were required to do really would not promote safety, that was a complete defense. It had a number of such provisions in it. I am convinced that accidents are caused by people, and the best safety program is one of cooperation and education where everyone is drawn into the act and there is kept before them the need for safety and the good will of every employee and employer. I think that will cut down on accidents. But to have a gestapo-type of inspection of businesses will only drive people out of business. Also, there may be a type of business that has not yet been inspected, but the proprietor is having his problems with high costs and all of the other laws and the taxes we impose on him and the withholding-tax responsibility, and he is debating whether to hang on or not. And when he learned of what is happening under this OSHA legislation, that is the deciding factor. Mr. McKEVITT. We heard testimony this morning from Congressman Sebelius indicating that he sees in the immediate future a loss of 10 businesses per county in his district, which is approximately a total of 600, in the coming year, if some alleviation is not given.