ments filed in the case so they can be read at reasonable times by affected employees or agents of unions representing affected employees.

F. Computation of Time

The Commission's Rules provide that in computing time, the day which starts the period shall not be included. The last day of the period is included, unless it is a Saturday, Sunday, or Federal holiday.

Example: The report of the Judge is filed Monday, July 3. In computing 30 days, July 3 is not included. Begin counting days on July 4. Thus, the review period ends on August 2. Since August 2 is not a Saturday, Sunday, or Federal holiday, it is included as the last day. However, were August 2 a Saturday, the last day of the review period would be the next Monday, August 4.

Where the period of time prescribed is less than 7 days, intermediate Saturdays, Sundays, and Federal holidays are not included.

Example: A motion is mailed on Monday, July 3. Since the period of time to respond is 10 days, Saturdays, Sundays, and Federal holidays are counted, and July 4 is the first day of the Computation period. Since the motion was served by mail, 3 days are added to the time to respond. Thus, the last day of the period is July 16. However, since July 16 is a Saturday, the last day to respond is put over to the following Monday-July 18.

G. Appearances in Commission Proceedings

Any party may appear in a Commission proceeding either personally, through an attorney, or through any person of his choosing. Such person need not be an attorney at law. Where affected employees are represented by a union for collective-bargaining purposes, customarily only the union's designated representative may appear.

An attorney or other representative who files an appearance in a case for one of the parties controls the proceedings with respect to the party represented. That person is the one to whom all papers in the case are sent.

H. Penalties

OSHA only proposes penalties. Their proposals become penalties when the enforcement action is not contested within the time prescribed. Once a case is contested, the assessment of a penalty, if any, is a matter for the Commisison.

When a case goes to hearing before a Review Commission Judge, the employer's evidence and argument on what penalty, if any, should be assessed, receives the same consideration as the evidence and argument of the Secretary of Labor on this matter.

The four factors which the law requires the Commission to consider in determining the appropriateness of civil penalties are:

The size of the business of the employer being charged;

The gravity of the violation;

The good faith of the employer; and

The employer's history of previous violations.

The amounts which may be assessed as penalties are set forth in Section 17 of the Act. All penalties assessed by the Commisison are civil, not criminal.

I. Criminal Fines

The Commission has no jurisdiction to impose criminal fines or prison sentences.

J. Ex Parte Communication

Parties to cases before the Commission may not communicate er parte with the Judge, a Commission member, or any employee of the Commission involved in a decisional process. In other words, no participant may discuss the merits of the case or make any argument with respect to a matter in controversy unless the other participants are present and given an opportunity to present their side or unless it is done in writing and copies are sent to all other parties. This prohibition does not, however, preclude asking questions with respect to the scheduling of a hearing or other procedural matters.

K. Court Review

Any person aggrieved by a final order of the Commission which was issued after a case has been initiated by the filing of a notice of contest, may petition for review in an appropriate United States Court of Appeals.

L. Employee Initiated Proceedings

Even if the employer does not file a notice of contest, affected employees may contest the reasonableness of the abatement period specified in the OSHA citation. They can do this by filing a notice of contest with the OSHA Area Director within 15 working days from the date the citation was issued. The notice of contest need state only that the contestant is an affected employee (or a union which represents affected employees for collective bargaining purposes) and wishes to contest the reasonableness of the abatement period. In all such proceedings, the other affected employees and the employer may elect to participate as parties.

(Note: Where affected employees are represented for collective bargaining purposes by a union, customarily only their union may file.)

Within 7 days of receipt of such a notice of contest, OSHA must forward it to the Commission. Within 10 days, the Secretary of Labor must file a statement with the Commission stating why the period prescribed for abatement is not unreasonable. No later than 10 days after service of this statement, the affected employees or their authorized representative must file a response, stating why the period prescribed by OSHA is unreasonable.

Procedures are similar to those for an employer notice of contest. The Secretary is the complainant, and he must establish that the period prescribed for abatement is not unreasonable.

(Note: Where the case involves only an employee (or union) contest to the reasonableness of the abatement period specified in the Citation, that period is not tolled with a final order of the Commission.)

M. Expedited Proceedings

In certain unusual situations, it may be necessary that the time allowed for the proceedings described in this Guide be expedited. The Commission's Rules of Procedure permit this upon the application of any party or intervenor, or upon the order of any member of the Commission. If an order is made to expedite proceedings, all parties and intervenors in the case will be specifically notified of the variances from what has been described in this Guide.

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (OVERSIGHT AND PROPOSED AMENDMENTS)

WEDNESDAY, SEPTEMBER 27, 1972

HOUSE OF REPRESENTATIVES,

SELECT SUBCOMMITTEE ON LABOR

OF THE COMMITTEE ON EDUCATION AND LABOR,

Washington, D.C.

The select subcommittee met at 10:05 a.m., pursuant to recess, in room 2257 of the Rayburn House Office Building, Hon. Dominick V. Daniels (chairman of the subcommittee) presiding.

Present: Representatives Daniels and Steiger.

Staff: Mr. Jack Miller, minority assistant counsel for Labor.

Mr. DANIELS. The Select Subcommittee on Labor will come to order. Our first witness today dealing with the subject of occupational safety and health is Dr. Marcus Key, Director of the National Institute for Occupational Safety and Health.

Step forward, please.

You may proceed, sir.

STATEMENT OF DR. MARCUS KEY, DIRECTOR, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH (NIOSH), DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, WASHINGTON, D.C.

Dr. KEY. Thank you, Mr. Chairman.

Mr. Chairman and members of the subcommittee, I appreciate the opportunity to appear before you today to discuss the Department of Health, Education, and Welfare's implementation of the Occupational Safety and Health Act of 1970.

This Department's responsibilities under the act are carried out by the National Institute for Occupational Safety and Health-which I will refer to as NIOSH subsequently-one of the 16 programs of the Health Services and Mental Health Administration. NIOSH carries out these responsibilities by conducting occupational safety and health research, developing criteria for standards, evaluating hazards and determining toxicities, providing technical assistance to other agencies, promoting occupational health programs, conducting professional training, and providing grants for training and research. One of the important functions of NIOSH is to conduct research. programs directed toward the development or modification of criteria which are used for recommending health or safety standards for promulgation by the Department of Labor. Research priorities are based upon occupational health and safety risks which are determined

by weighing the number of workers exposed to a job hazard, that hazard's potential for causing injury or disease and the number of workers showing effects. A priority list of needs has been developed to guide the initial research activities of NIOSH. This list, which is periodically revised to more accurately assess worker risk as the data generated by the act become available, is used to guide NIOSH in determining what toxic substances and physical agents are to be considered for citeria document development.

Measurable output of the NIOSH research program is the number of criteria documents produced and the number of workers thereby protected. Five criteria documents have already been completed and sent to the Labor Department-Asbestos, Beryllium, Carbon Monoxide, Hot Environments, and Noise. The published criteria documents contain information on instruments for monitoring environmental hazards, on the effects of different exposure levels over varying periods of time, and medical surveillance programs to detect early symptoms of dangerous exposure levels.

During this fiscal year we expect to publish 18 more criteria documents including use registration standards for certain carcinogenic compounds. Among the documents being developed are criteria for lead, mercury, ultraviolet light, cadmium, and bis-chloromethyl ether. Because of the importance of this aspect of NIOSH's responsibilities, efforts are being made to improve agency organization and procedures particularly with respect to this work.

In addition to the responsibility for developing criteria for a range of substances, the 1970 act includes several provisions to help employers and employees deal with immediate short-term problems. I would like to review our experience with three of these which lie within HEW's responsibilities.

First, technical assistance. This role can be thought of as a two-way bridge between the Government and the working community. Employers and employees can alert the Government to potentially hazardous situations that may have been overlooked. In responding, the Government helps to improve the workplace, and at the same time the field experience provides continuous data to be evaluated by the research staff of the Institute. This reciprocal relationship contributes to the development of more appropriate and timely research goals.

Section 20 (a) (6) of the 1970 act provides that NIOSH determines following a written request by any employer or authorized representative of employees "*** whether any substance normally found in the place of employment has potentially toxic effects in such concentrations as used or found *** ." Medical examinations and even animal toxicity studies can be conducted when necessary to make the toxicity determination. This responsibility is different from the compliance activities of the Department of Labor because the goal is not to meet a standard but rather to identify specific situations that could be hazardous to the worker. In addition to protecting the workers directly involved by identifying dangerous situations in the workplace, these evaluations may identify new hazards in the workplace, which are then considered for inclusion within the research priorities.

Hazard evaluation involves more than the recognition of a toxic substance and a knowledge of its relative potency. It involves the measurement of the quantity of the substance in relation to other