[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1583 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 1583
To amend the Occupational Safety and Health Act of 1970 to provide for
adjudicative improvement, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 3, 2003
Mr. Norwood (for himself, Mr. Boehner, Mrs. Biggert, Mr. Ballenger, Mr.
Hoekstra, Mr. Keller, Mr. Kline, Mrs. Blackburn, and Mr. Isakson)
introduced the following bill; which was referred to the Committee on
Education and the Workforce
_______________________________________________________________________
A BILL
To amend the Occupational Safety and Health Act of 1970 to provide for
adjudicative improvement, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Occupational Safety and Health-
Fairness Act of 2003''.
SEC. 2. CONTESTING CITATIONS UNDER THE OCCUPATIONAL SAFETY AND HEALTH
ACT.
(a) Citation.--The second sentence of section 10(a) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 659(a)) is
amended by inserting ``(unless such failure results from mistake,
inadvertence, surprise, or excusable neglect)'' after ``assessment of
penalty''.
(b) Failure to Correct.--The second sentence of section 10(b) of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 659(b)) is
amended by inserting ``(unless such failure results from mistake,
inadvertence, surprise, or excusable neglect)'' after ``assessment of
penalty''.
SEC. 3. WILLFUL VIOLATIONS.
Section 17(a) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 666(a)) is amended by inserting at the end, ``A violation is
willful only if the employer (1) knew that the alleged condition
violated a standard, rule, order or regulation and, without a good
faith belief in the legality in its conduct, knowingly disregarded the
requirement of the standard, rule, order, or regulation, or (2) knew
that employees were, or that it was reasonably predictable that
employees would be, exposed to a hazard causing or likely to cause
death or serious physical injury and recklessly disregarded the
exposure of employees to that hazard.''.
SEC. 4. FAIRNESS OF PENALTY ASSESSMENT
Section 17(j) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 666(j)) is amended--
(1) by inserting the words, ``and de novo'' after the word
``due''; and
(2) striking all after the word ``consideration'' and
inserting in lieu thereof: ``to the evidence of the
appropriateness of the penalty with respect to at least the
following factors:
``(1) the size and financial condition of the business of
the employer;
``(2) the gravity of the violation, considering the
probability of harm, the nature and extent of the harm, the
number of affected employees, and other relevant factors;
``(3) the good faith of the employer, including the
employer's good faith efforts to comply or abate;
``(4) the history and recentness of substantially similar
previous violations of the cited employer at the same
nonconstruction worksite and at construction worksites within
the same State; and
``(5) the degree of responsibility or culpability for the
violation of the employer, the employees, and/or other
persons.''.
SEC. 5. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.
(a) Amendments.--Section 12 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 661) is amended as follows:
(1) In subsection (a), by striking the word ``three'' and
inserting in lieu thereof, the word ``five;'' and inserting
before the word ``training'' the word ``legal''.
(2) In subsection (b) by striking all after the words
``except that'' and inserting in lieu thereof, ``the President
may extend the term of a member to allow a continuation in
service at the pleasure of the President after the expiration
of that member's term until a successor nominated by the
President has been confirmed to serve. Any vacancy caused by
the death, resignation, or removal of a member before the
expiration of a term, for which he or she was appointed shall
be filled only for the remainder of such expired term. A member
of the Commission may be removed by the President for
inefficiency, neglect of duty, or malfeasance in office.
(3) Subsection (f) is amended to read as follows:
``(f) The Chairman of the Commission is authorized to delegate to
any panel of three or more members any or all of the powers of the
Commission. For the purpose of carrying out its functions under this
chapter, 3 members of the Commission shall constitute a quorum, except
that 2 members shall constitute a quorum for any sub-panel designated
by the Chairman under this subsection.''.
(b) New Positions.--Of the two vacancies for membership on the
Commission created by this section, one shall be filled by the
President for a term expiring on April 27, 2006, and the other shall be
filled by the President for a term expiring on April 27, 2008.
SEC. 6. AWARD OF ATTORNEY'S FEES AND COSTS.
The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 and
following) is amended by redesignating section 32 through 34 as 33
through 35 and inserting the following new section after section 31:
``SEC. 32. AWARD OF ATTORNEYS' FEES AND COSTS.
``(a) Administrative Proceedings.--An employer who--
``(1) is the prevailing party in any adversary adjudication
instituted under this Act, and
``(2) had not more than 100 employees and a net worth of
not more than $1,500,000 at the time of the adversary
adjudication was initiated,
shall be awarded fees and other expenses as a prevailing party under
section 504 of title 5, United States Code, in accordance with the
provisions of that section, but without regard to whether the position
of the Secretary was substantially justified or special circumstances
make an award unjust. For purposes of this section the term `adversary
adjudication' has the meaning given that term in section 504(b)(1)(C)
of title 5, United States Code.
``(b) Proceedings.-- An employer who--
``(1) is the prevailing party in any proceeding for
judicial review of any action instituted under this Act, and
``(2) had not more than 100 employees and a net worth of
not more than $1,500,000 at the time the action addressed under
subsection (1) was filed,
shall be awarded fees and other expenses as a prevailing party under
section 2412(d) of title 28, United States Code, in accordance with the
provisions of that section, but without regard to whether the position
of the United States was substantially justified or special
circumstances make an award unjust. Any appeal of a determination of
fees pursuant to subsection (a) of this subsection shall be determined
without regard to whether the position of the United States was
substantially justified or special circumstances make an award unjust.
``(c) Applicability.--
``(1) Commission proceedings.--Subsection (a) of this
section applies to proceedings commenced on or after the date
of enactment of this Act.
``(2) Court proceedings.--Subsection (b) of this section
applies to proceedings for judicial review commenced on or
after the date of enactment of this Act.''.
SEC. 7. INDEPENDENT REVIEW.
Section 11(a) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 660) is amended by adding the following at the end thereof:
``The conclusions of the Commission with respect to all questions of
law shall be given deference if reasonable.''.
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