*
H. B. 4645
(By Delegates Paxton and Stephens)
[Introduced
February 22, 2010
; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business then the Judiciary.]
A BILL to repeal §21-3A-10, §21-3A-11, §21-3A-12,
§21-3A-18 and
§21-3A-19
of the Code of West Virginia, 1931 as amended;
to
amend and reenact §5B-1-2
of said code; and to amend and
reenact §21-3A-2, §21-3A-5, §21-3A-6, §21-3A-7 and §21-3A-8 of
said code, all relating to the West Virginia Occupational
Safety and Health Act;
repealing the West Virginia OSHA
Commission; transferring the rule-making authority and duties
of the commission to the Commissioner of Labor; adding
definitions; clarifying employer and employee duties;
requiring the promulgation of legislative rules by date
certain; requiring education programs; authorizing emergency
rules by date certain; requiring reporting; adopting federal
standards by a date certain; authorizing inspections;
requiring inspection reports;
specifying penalty for
noncompliance; and providing appeals
.
Be it enacted by the Legislature of West Virginia:
That §21-3A-10, §21-3A-11, §21-3A-12,
§21-3A-18 and §21-3A-19
of the Code of West Virginia, 1931 as amended
, be repealed; that
§5B-1-2 of said code
be amended and reenacted; that
§21-3A-2, §21-
3A-5, §21-3A-6, §21-3A-7 and §21-3A-8 of said code
be amended and
reenacted, all to read as follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-2. Agencies, boards, commissions, divisions and offices
comprising the Department of Commerce.
The Department of Commerce consists of the following agencies,
boards, commissions, divisions and offices, including all of the
allied, advisory, affiliated or related entities, which are
incorporated in and administered as part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-
one of this code, which includes
(A)
Occupational Safety and Health Review Commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety
provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety
and Technical Review Committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the
Division of Tourism and the Tourism Commission, provided in article
two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources
Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter
nineteen of this code;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code;
(7) Workforce West Virginia provided in chapter twenty-one-a
of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article one, chapter five-h
of this code.
CHAPTER 21. LABOR.
ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.
§21-3A-2. Definitions.
As used in this chapter, unless the context clearly indicates
otherwise:
(a) "Commission" means the occupational safety and health
review commission established under this article;
(b)(a) "Commissioner" means the Labor Commissioner or his a
designated agent;
(c) (b)"Employee" means any public employee of the state, or
any state agency;
(d) (c)"Employer" means public employer and shall include
includes the state or any department, division, bureau, board,
council, agency or authority of the state, including county and
municipal offices, but shall does not include the Department( of
Corrections, the department of health and the Legislature;
(e)(d) "Occupational safety and health standard" means a
standard for health or safety which requires the adoption or use of
one or more practices, means, methods, operations or processes
reasonably necessary or appropriate to provide safe and healthful
employment in places of employment;
(f)(e) "Person" means one or more individuals;
"Potential hazard" means:
(1) A hazard reasonably anticipated or known to be associated with a working condition, a work related product or byproduct;
(2) Any emergency or unusual situation a reasonable person
would avoid if made aware of, regardless if it is mechanical,
industrial, chemical, water based or airborne;
(h) (g)"Temporary variance" means a written authorization
bythe commissioner to grant an exemption from a recognized
occupational health and safety standard established pursuant to
this article and applicable federal law. A temporary variance may
not be issued in excess of seven working days: Provided, That a
variance may not be issued where an employer or employee has a duty
to correct a violation of this article: Provided, however, That a
variance may not be issued that endangers an employee or the
general public; and
(i) (h)"Workplace" means a place where public employees are
assigned to work but shall not include any place where public
employees are assigned to work that is inspected and regulated in
accordance with federal occupational safety and health standards or
mine safety and health administration standards, or facilities
under the authority of the department of corrections, the
department of health, or the Legislature.
§21-3A-5. Duties of employer and employee.
(a) Each employer shall furnish to each of his employees
employment and employee a place of employment which are is free
from recognized hazards causing or likely to cause death or serious
physical harm or serious illness to his employees any employee of the employer or the general public.
(b) Each employer shall, upon the written request of any
employee, furnish the employee with a written statement listing the
substances which the employee uses or with which the employee comes
into contact, which substances have been identified as toxic and
hazardous by occupational safety and health standards, under Title
29 CFR 1910.1000 "Air Contaminant Code of Federal Regulations"
through 1910.1046, or listed in the most recent National Institute
for Occupational Safety and Health Registry of the Toxic Effects of
Chemical Substances (RTECS).
(c) Each employer shall comply with occupational safety and
health standards promulgated under this article.
(d) Each employer shall submit, on or before June 1, 2010,
an
employee training and education plan to the commissioner for
approval to reduce and eliminate the inherent risk of all
applicable job titles or classifications for each employee of the
employer. Each employer plan shall identify the known risks and
the appropriate training for each job title or classification
necessary to comply with the intent of this article.
(e) Each employer shall provide each employee with access to
reasonable use of the employers office equipment, computers,
copiers and communication equipment and each employee shall have
use of such office equipment to prepare or copy any report,
investigation or inspection provided for in this article.
(d) (f)
Each employee shall comply with occupational safety and health standards and all regulations and orders issued pursuant
to this article which are applicable to his or her actions and
conduct.
(g) Each employee shall report any potential hazard in writing
to the employer as soon as such reporting is practical: Provided,
That where a potential hazard, emergency or unusual situation can
be reasonably considered life threatening, reporting may be
conducted telephonically, electronically, or in person. Where an
employee reports a potential hazard other than in writing the
employee shall have seven work days to submit a written statement
reporting the incident to the employer.
(h) Each employee shall report any failure to comply with this
article, or any on going violation of this article, to the
commissioner. An employee, who in good faith dutifully reports a
violation or suspected violation of this article to the
commissioner, shall be immune from any civil liability.
(i) Each employee shall and any employer may report any
potential hazard to the commissioner regardless of whether it is
life threatening or not;
(j) No employer may retaliate against an employee who reports
in good faith a potential hazard, an emergency or unusual situation
or a violation of this article. An employer who violates this
section is guilty of insubordination and may be disciplined up to
and including termination.
§21-3A-6. Rules.
In the rules adopted under the authority of this article, the
commissioner shall:
(a) On or before June 30, 2010, the commissioner shall propose
legislative rules pursuant to article three, chapter twenty-nine-a
of this code to:
(1) Provide for the preparation, adoption, amendment or repeal
of rules necessary to effectuate the health and safety purposes of
this article;
(b) (2) Provide or specify the form and content of the employer
educational programs to be provided by or submitted to the
commissioner for approval, in a manner determined by the
commissioner. Educational programs shall be detailed and task
specific to encourage employers and employees in their efforts to
reduce the number of safety and health hazards and to stimulate
employers and employees to institute new programs, and to perfect
existing programs to provide for safe and healthful working
conditions: Provided, That if an employer does not submit an
educational program plan by December 31, 2010, the commissioner
shall determine an appropriate plan to be implemented by the
employer by July 1, 2011;
(c) (3) Provide standard procedures for appropriate reporting
procedures by employers with respect to information relating to
conditions of employment which will assist in achieving the
objectives of this article;
(d) (4) Provide for the frequency, method and manner of making inspections of workplaces without advance notice: Provided, That
in the event of an emergency or unusual situation, the commissioner
may not be required to give advance notice;
(e) (5) Provide for the publication and dissemination to
employers, employees and labor organizations and the posting, where
appropriate, by employers of informational, educational or training
materials calculated to aid and assist in achieving the objectives
of this article; and
(f) (6) Provide for the establishment of new programs, and the
perfection and expansion of existing programs for occupational
safety and health education for employers and employees and
institute methods and procedures to establish a program for
voluntary compliance by employers and employees with the
requirements of this article and all applicable safety and health
standards and regulations promulgated pursuant to the authority of
this article.
(7) Provide the minimum standards for employer education and
training programs, adequate to protect the health, safety and
welfare of each employee of the employer.
(8) Establish criteria for each employer to adopt education and
training programs that allow employee participation in the
development of the educational training programs specific to the
employee job description and classification title.
(9) Provide for the use of labels or other appropriate forms
of warning necessary to ensure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate
emergency treatment and, where appropriate, proper conditions and
precautions of safe use or exposure.
(10) Provide standards for suitable protective equipment and
control procedures for use in connection with such hazards and shall
provide for measuring employee exposure in the manner necessary for
the protection of employees.
(11) Provide guidelines for the type and frequency of medical
examinations or other tests which shall be made available to
employees exposed to such hazards in order to determine any adverse
effect from that exposure.
(12) Establish a complaint process to allow an employee to
report potential hazards, emergency or unusual situations and
violations of this article
. The complaint process shall include:
(A) The form in which a request can be made for inspections and
investigations;
(B) Required notice of inspections and investigations, to allow
participation by the employee or party of complainants, employee
representatives and the employer;
(C) Required reporting of any findings of the investigation
including any recommendations, to provide a copy of all reports to
the employee or party of complainants, employee representatives and
the employer; and
(D) An appeal process for any party adversely impacted by an
inspection, investigation or finding by the commissioner or lack thereof.
(13) Provide a process for an employer to request a variance
or temporary order from compliance with any rule or standard
pursuant to this article. A request for variance or temporary order
shall be in writing and shall specify the reasons for the request.
A copy of the request for a variance or temporary order
shall b
e
provided to each employee of the employer requesting the variance
or temporary order. The commissioner shall allow each employee not
less than twenty work days to comment on the request before
consideration of the request;
(14) Provide the manner in which reports shall be developed,
the schedule for the production of inspection and investigation
reports and provide that such reports shall be made available to the
public, the employers, employees and any employee representatives:
Provided, That the name or names of the person or group of people
who file a complaint, request for inspection or investigation
pursuant to this article shall be redacted from all public records;
and
(16) Provide an appeals process for an employer or employee who
may be adversely impacted by any action taken pursuant to this
article: Provided, That the commissioner shall also provide an
appeals process as a remedy for the inaction of any employer,
employee or the commissioner.
(b) The commissioner may promulgate rules pursuant to this
article as emergency rules: Provided, That any rule promulgated as an emergency rule shall submitted for approval by the Legislature
no later than December 31, 2010.
§21-3A-7. Adoption of federal and state standards; variances
emergency situation reports; and appeals.
(a) The commissioner, on or before July 1, 1987 2010, shall
provide at the minimum, for the adoption of all occupational safety
and health standards, amendments or changes adopted or recognized
by the United States Secretary of Labor under the authority of the
Occupational Safety and Health Act of 1970, which are in effect on
the effective date of this section. Where no federal standards are
applicable, or where standards more stringent than the federal
standards are deemed advisable, the commissioner shall provide for
the development of such state standards as will that comport with
the purposes of this act. Standards applicable to the
implementation and enforcement of this article shall be adopted
through state administrative procedures pursuant to article three,
chapter twenty-nine-a of this code.
(b)(1) In the event of emergency or unusual situations, the
commissioner shall provide for an emergency temporary standard to
take effect immediately if he determines: inspection by appropriate
staff, emergency response personnel or other persons designated by
the commissioner who are qualified to identify potential hazards,
emergency situations and life threatening conditions. The
commissioner or an appropriate designee shall have the authority to
recommend corrective action to any employer or employee covered by this article to mitigate a perceived risk to the employer, any
employee or to the general public.
(2) The commissioner or a designee shall produce a report in
writing within ten work days to summarize the status of the
emergency or unusual situation, including any subsequent inspection
or investigation conducted pursuant to this section. All inspection
reports shall detail the location of the emergency or unusual
situation, the conditions that caused the emergency or unusual
situation to the extent practical that a cause has been determined
and shall detail the actions taken or recommendations considered
necessary to correct or mitigate the emergency or unusual situation
and shall include any recommendations to prevent future emergencies
or unusual situations specific to the incident.
(c) Any employer or employee, or the commissioner, adversely
affected or aggrieved by any action taken pursuant to this article,
after all administrative remedies provided by this article have been
exhausted, is entitled to judicial review pursuant to section four,
article five, chapter twenty-nine-a of this code.
(1) Employees are exposed to grave danger from exposure to
substances or agents determined to be toxic or physically harmful
or from new hazards; and
(2) The emergency standard is necessary to protect employees
from such danger.
The emergency standard may be in effect not longer than one
hundred eighty days or, if renewed in compliance with the laws of this state governing the adoption or extension of rules, not longer
than sixty additional days. On or before the expiration date of the
emergency standard or renewal thereof, the commissioner shall
develop a permanent standard to replace the emergency standard.
(c) Any standard promulgated shall prescribe the use of labels
or other appropriate forms of warning necessary to ensure that
employees are apprised of all hazards to which they are exposed,
relevant symptoms and appropriate emergency treatment and, where
appropriate, proper conditions and precautions of safe use or
exposure. The standard shall also prescribe suitable protective
equipment and control procedures for use in connection with such
hazards and shall provide for measuring employee exposure in the
manner necessary for the protection of employees. In addition,
where appropriate, the standard shall prescribe the type and
frequency of medical examinations or other tests which shall be made
available to employees exposed to such hazards in order to determine
any adverse effect from that exposure.
(d) Any employer may apply to the commissioner for a temporary
order granting a variance from a standard, or any provision thereof,
promulgated under this section. A temporary order shall be granted
if the employer files an application which meets the requirements
of subsection (e) of this section and establishes that:
(1) He is unable to comply with a standard by its effective
date because of unavailability of professional or technical
personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or
alteration of facilities cannot be completed by the effective date;
(2) He is taking all available steps to safeguard employees
against the hazards covered by the standard; and
(3) He has an effective program for coming into compliance with
the standard as quickly as practicable.
Any temporary order issued under this subsection shall
prescribe the practices, means, methods, operations and processes
which the employer must adopt and use while the order is in effect
and state in detail his program for coming into compliance with the
standard. A temporary order may be granted only after notice by the
commissioner to employees and an opportunity for a hearing before
the commissioner: Provided, That the commissioner may issue one
interim order to be effective until a decision is made on the basis
of the hearing. No temporary order may be in effect for longer than
the period needed by the employer to achieve compliance with the
standard or one year, whichever is shorter: Provided, however, That
an order may be renewed if the requirements of this subsection are
met and if an application for renewal is filed at least ninety days
prior to the expiration date of the order. No interim renewal of
an order may remain in effect longer than one hundred eighty days.
(e) An application for a temporary variance order shall
contain:
(1) A specification of the standard or portion thereof from
which the employer seeks a variance;
(2) A representation by the employer, supported by
representations from qualified persons who have firsthand knowledge
of the facts represented, that he is unable to comply with the
standard or portion thereof and a detailed statement of the reasons
therefor;
(3) A statement of the steps he has taken and will take, with
specific dates, to protect employees against the hazard covered by
the standards;
(4) A statement of when he expects to comply with the standard
and what steps he has taken and what steps he will take, with dates
specified, to come into compliance with the standard; and
(5) A certification that he has informed his employees of the
application by giving a copy thereof to their authorized
representative, posting a statement giving a summary of the
application and specifying where a copy may be examined at the place
or places where notices to employees are normally posted and by
other appropriate means. A description of how employees have been
informed shall be contained in the certification. The information
to employees shall inform them of their right to petition the
commissioner for a hearing. The commissioner is authorized to grant
a variance from any standard or portion thereof whenever he
determines that a variance is necessary to permit an employer to
participate in an experiment, approved by the commissioner, designed
to demonstrate or validate new and improved techniques to safeguard
the health or safety of workers.
(f) Any affected employer may apply to the commissioner for an
order granting a variance from a standard promulgated under this
section. Affected employees shall be given notice of each such
application and an opportunity to participate in a hearing before
the commissioner. The commissioner shall issue such order if he or
she determines on the record, after opportunity for an inspection
where appropriate and a hearing, that the proponent of the variance
has demonstrated by a preponderance of the evidence that the
conditions, practices, means, methods, operations or processes used
or proposed to be used by an employer will provide employment and
places of employment which are as safe and healthful as those which
would prevail if he complied with the standard. The order issued
shall prescribe the conditions the employer must maintain and the
practices, means, methods, operations and processes which he must
adopt and utilize to the extent they differ from the standard in
question. The order may be modified or revoked upon application by
an employer or employees, or by the commissioner on his own motion,
in the manner prescribed for its issuance under this subsection at
any time after six months from its issuance.
(g) Any employee who may be adversely affected by a standard
or variance or regulation issued under this section may challenge
the validity or applicability of a standard or variance or
regulation by bringing an action for a declaratory judgment.
(h) It is the expressed intent of the Legislature that an
unlimited number of variances may be granted, if the conditions of this section are met.
§21-3A-8. Inspections and investigations; records.
(a) In order to carry out the purposes of this article, the
commissioner or his agent a designee, upon presenting appropriate
credentials to the employer, is authorized:
(1) To enter without advance notice, except as provided in
subsection (d) of section six, and at reasonable times may enter any
workplace or environment where work is performed by an employee of
an employer; and
(2) To inspect and investigate, during regular working hours
and at other reasonable times and within reasonable limits and in
a reasonable manner, any place of employment and all pertinent
conditions, structures, machines, apparatus, devices, equipment and
the materials therein, and to question privately any employer or
employee. No public employer may refuse to allow a representative
of the commissioner to inspect a place of employment. If an
employer attempts to prevent a representative of the department from
conducting an inspection, the commissioner may obtain an inspection
warrant from the circuit court of Kanawha County or the circuit
court of the county wherein the employer is located.
(b) In making his inspections and investigations under this
entire article the commissioner may require the attendance and
testimony of witnesses and the production of evidence under oath.
Witnesses shall be paid the same fees and mileage that are paid
witnesses in the courts of this state. In case of contumacy or failure or refusal of any person to obey such an order to appear,
testify or produce evidence, the circuit court for the judicial
circuit wherein the person resides, is found or transacts business
has jurisdiction to issue to the person an order requiring the
person to appear, to produce evidence if asked and, when so ordered,
to give testimony relating to the matter under investigation or in
question. Any failure to obey such an order of the court may be
punished by the court as a contempt thereof.
(c) (1) Each employer shall make, keep, preserve and make
available to the commissioner and the United States secretary of
labor records regarding his or her activities relating to this
entire article as the commissioner may prescribe by rule as
necessary or appropriate for the enforcement of this article or for
developing information regarding the causes and prevention of
occupational accidents and illnesses. In order to carry out the
provisions of this subdivision, these rules may include provisions
requiring employers to conduct periodic inspections. The
commissioner shall also issue rules requiring that employers,
through posting of notices or other appropriate means, keep their
employees informed of their protections and obligations under this
entire article, including the provisions of applicable standards.
(2) The commissioner shall prescribe rules requiring employers
to maintain accurate records of and to make periodic reports on
work-related deaths, injuries and illnesses other than minor
injuries requiring only first-aid treatment and not involving medical treatment, loss of consciousness, restriction of work or
motion or transfer to another job.
(3) The commissioner shall issue rules requiring employers to
maintain accurate records of employee exposures to potentially toxic
materials or harmful physical agents which are required to be
monitored or measured under any occupational safety and health
standard adopted under this entire chapter. These regulations shall
provide employees or their representatives an opportunity to observe
the monitoring or measuring and to have access to the records. The
regulations shall also make appropriate provisions for each employee
or former employee to have such access to the records as will
indicate that indicates his or her own exposure to toxic materials
or harmful physical agents. Each employer shall promptly notify any
employee who has been or is being exposed to toxic materials or
harmful physical agents in concentrations or at levels which exceed
those prescribed by an applicable occupational safety and health
standard promulgated under section six of this article and shall
inform any employee who is being thus exposed of the corrective
action being taken.
(d) Any information obtained by the commissioner under this
entire article shall be obtained with a minimum burden upon
employers. Unnecessary duplication of efforts in obtaining
information shall be eliminated to the maximum extent feasible:
Provided, That an employer who obstructs an inspection or
investigation authorized pursuant to this article is guilty of insubordination and is subject to disciplinary action up to and
including termination.
(e) Subject to rules issued by the commissioner, a
representative of the employer and a representative authorized by
the employees of the employer shall be given an opportunity to
accompany the commissioner or his or her authorized representative
during the physical inspection of any workplace for the purpose of
aiding the inspection. Where there is no authorized employee
representative, the commissioner or his or her authorized
representative shall consult with a reasonable number of employees
concerning matters of health and safety in the workplace.
(f) (1) Any employee or representative of employees who
believes that there is a violation of an occupational safety or
health standard or that there is an imminent danger of physical harm
may request an inspection by giving notice to the commissioner or
his an authorized representative of the violation or danger. The
notice may be in any form, but shall be reduced to writing, within
seven work days after the imminent danger was first reported and
shall set forth with reasonable particularity the grounds for the
notice and shall be signed by the employee, employees or their an
employee representative. A copy of the notice shall be provided the
employer or his or her agent no later than the time of the
inspection: Provided, That upon the request of the person giving
the notice, his or her name and the names of individual employees
referred to therein shall not appear in the copy or on any record published, released or made available pursuant to subsection (g) of
this section. If, upon receipt of the notification, the
commissioner determines there are reasonable grounds to believe that
such the violation or danger exists, he or she shall make an
inspection in accordance with the provisions of this section article
as soon as practicable to determine if the violation or danger
exists.
(2) The commissioner shall maintain records of the results of
any such investigation, which shall be made available to
any
employee, employee representatives, the employer and to
the public
upon request.
(3) The authority of the commissioner to inspect any premises
for purposes of investigating an alleged violation of safety
standards shall not be is not limited to the alleged violation but
shall extend extends to any other area of the premises in which he
or she has reason to believe that a violation of the safety
standards promulgated under this act exists. If the commissioner
determines there are no reasonable grounds to believe that the
violation or danger exists, he or she shall notify the employer,
employee or representative of employees in writing of the
determination. The notification does not preclude future
enforcement action if conditions change.
(2) (4) Prior to Before or during any inspection of a
workplace, any employees or representative of employees employed in
the workplace may notify the commissioner, or any representative of the commissioner responsible for conducting the inspection, in
writing of any violation of this entire article which they have
reason to believe exists in the workplace. The commissioner shall,
by rule, establish procedures for review of any refusal by a
representative of the commissioner to issue a citation with respect
to any alleged violation, and shall furnish the employer and the
employees or representative of employees requesting the review a
written statement of the reasons for the commissioner's final
disposition of the case. The notification does not preclude future
enforcement action if conditions change.
(g) (1) The Commissioner is authorized to compile, analyze and
publish in either summary or detail form all reports or information
obtained under this section.
(2) The Commissioner shall prescribe such rules as he considers
necessary to carry out his responsibilities under this article,
including rules dealing with the inspection of an employer's or
owner's establishment.
(g) The commissioner shall produce an annual report on or
before December 31 of each year summarizing the number of complaints
received for the previous two calendar years, specifying the nature
of the complaints and summarizing the disposition of each complaint,
incident, inspection, investigation or violation of this article.
NOTE: The purpose of this bill is to require implementation of
the 1987 WV Occupational Safety and Health Act by requiring the
development of standards and legislative rules by June 30, 2010. The bill repeals the WV OSHA Commission. Rule-making authority of the
commission is transferred to the Commissioner of Labor who shall
enforce the provisions of the act.
Strike-throughs indicate language that would be stricken from
the present law, underscoring indicates language that would be
added.