[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2728 Placed on Calendar Senate (PCS)]
Calendar No. 535
108th CONGRESS
2d Session
H. R. 2728
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 19, 2004
Received and read the first time
May 20, 2004
Read the second time and placed on the calendar
_______________________________________________________________________
AN ACT
To amend the Occupational Safety and Health Act of 1970 to provide for
adjudicative flexibility with regard to an employer filing of a notice
of contest following the issuance of a citation by the Occupational
Safety and Health Administration; to provide for greater efficiency at
the Occupational Safety and Health Review Commission; to provide for an
independent review of citations issued by the Occupational Safety and
Health Administration; to provide for the award of attorney's fees and
costs to very small employers when they prevail in litigation prompted
by the issuance of citations by the Occupational Safety and Health
Administration; and to amend the Paperwork Reduction Act and titles 5
and 31, United States Code, to reform Federal paperwork and regulatory
processes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Table of contents.
TITLE I--OCCUPATIONAL SAFETY AND HEALTH SMALL BUSINESS DAY IN COURT ACT
Sec. 101. Short title.
Sec. 102. Contesting citations under the Occupational Safety and Health
Act.
TITLE II--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY
ACT
Sec. 201. Short title.
Sec. 202. Occupational Safety and Health Review Commission.
TITLE III--OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA
CITATIONS ACT
Sec. 301. Short title.
Sec. 302. Independent review.
TITLE IV--OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO
JUSTICE ACT
Sec. 401. Short title.
Sec. 402. Award of attorney's fees and costs.
TITLE V--PAPERWORK AND REGULATORY IMPROVEMENTS ACT
Sec. 501. Short title.
Sec. 502. Findings.
Sec. 503. Reduction of tax paperwork.
Sec. 504. Repeal of exemptions from Paperwork Reduction Act, etc.
Sec. 505. Amendment of Truth in Regulating Act to make permanent pilot
project for report on rules.
Sec. 506. Improved regulatory accounting.
TITLE I--OCCUPATIONAL SAFETY AND HEALTH SMALL BUSINESS DAY IN COURT ACT
SEC. 101. SHORT TITLE.
This title may be cited as the ``Occupational Safety and Health
Small Business Day in Court Act of 2004''.
SEC. 102. 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''.
TITLE II--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY
ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Occupational Safety and Health
Review Commission Efficiency Act of 2004''.
SEC. 202. 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 by inserting
the word ``legal'' before the word ``training''.
(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 for no more than 365
consecutive days 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) In subsection (f), by striking ``two'' the first place
it appears and inserting ``three''.
(b) New Positions.--Of the three 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.
TITLE III--OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA
CITATIONS ACT
SEC. 301. SHORT TITLE.
This title may be cited as the ``Occupational Safety and Health
Independent Review of OSHA Citations Act of 2004''.
SEC. 302. 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 that are subject to agency deference under governing court
precedent shall be given deference if reasonable.''.
TITLE IV--OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO
JUSTICE ACT
SEC. 401. SHORT TITLE.
This title may be cited as the ``Occupational Safety and Health
Small Employer Access to Justice Act of 2004''.
SEC. 402. 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 sections 32 through 34 as
sections 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 $7,000,000 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 $7,000,000 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 section.
``(2) Court proceedings.--Subsection (b) of this section
applies to proceedings for judicial review commenced on or
after the date of enactment of this section.''.
TITLE V--PAPERWORK AND REGULATORY IMPROVEMENTS ACT
SEC. 501. SHORT TITLE.
This title may be cited as the ``Paperwork and Regulatory
Improvements Act of 2004''.
SEC. 502. FINDINGS.
Congress finds the following:
(1) In 1980, in the Paperwork Reduction Act, Congress
established the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget. OIRA's principal
responsibility is to reduce the paperwork burden on the public
that results from the collection of information by or for the
Federal Government. In 2002, OIRA estimated that the paperwork
burden imposed on the public was 7.7 billion hours, at a cost
of $230 billion. The Internal Revenue Service accounted for 83
percent of the paperwork burden.
(2) In 1995, Congress amended the Paperwork Reduction Act
and established annual governmentwide paperwork reduction goals
of 10 percent for each of fiscal years 1996 and 1997, and 5
percent for each of fiscal years 1998 through 2001, but the
paperwork burden increased, rather than decreased, in each of
those fiscal years and fiscal year 2002. Both the Office of
Management and Budget and the Internal Revenue Service need to
devote additional attention to paperwork reduction.
(3) In 2002, the House Report accompanying the Treasury and
General Government Appropriations Act, 2003 (House Report 107-
575) stated, ``The Office of Management and Budget has reported
that paperwork burdens on Americans have increased in each of
the last six years. Since the Internal Revenue Service imposes
over 80 percent of these paperwork burdens, the Committee
believes that OMB should work to identify and review proposed
and existing IRS paperwork.''.
(4) One key to success in paperwork reduction is the Office
of Management and Budget's systematic review of every new and
revised agency paperwork proposal. Recent statutory exemptions
from that office's review responsibility, especially those
without any stated justification, should be removed.
(5) In 2000, researchers Mark Crain of George Mason
University and Thomas Hopkins of the Rochester Institute of
Technology, in their October 2001 publication titled ``The
Impact of Regulatory Costs on Small Firms'', estimated that
Americans spend $843 billion annually to comply with Federal
regulations. Congress has a responsibility to review major
rules (as defined by section 804 of title 5, United States
Code) proposed by agencies, especially regulatory alternatives
and the costs and benefits associated with each of them. In
2000, in the Truth in Regulating Act, Congress established new
responsibility within the General Accounting Office to assist
Congress with this responsibility.
(6) In 1996, because of the increasing costs and
incompletely estimated benefits of Federal rules and paperwork,
Congress required the Office of Management and Budget for the
first time to submit an annual report to Congress on the total
costs and benefits to the public of Federal rules and paperwork
requirements, including an assessment of the effects of Federal
rules on the private sector and State and local governments. In
1998, Congress changed the annual report's due date to coincide
with the due date of the President's budget, so that Congress
and the public could be given an opportunity to simultaneously
review both the on-budget and off-budget costs associated with
the regulatory and paperwork requirements of each Federal
agency. In 2000, Congress made this a permanent annual
reporting requirement.
(7) The Office of Management and Budget requires agencies
to submit annual budget and paperwork burden estimates in order
to prepare certain required reports for Congress, but it does
not require agencies to submit estimates on costs and benefits
of agency rules and paperwork. The Office of Management and
Budget needs to require agencies to submit such estimates on
costs and benefits to help prepare the annual accounting
statement and associated report required under section 624 of
the Treasury and General Government Appropriations Act, 2001.
SEC. 503. REDUCTION OF TAX PAPERWORK.
Section 3504 of title 44, United States Code, is amended by adding
at the end the following new subsection:
``(i) In carrying out subsection (c)(3), the Director shall (in
consultation with the Internal Revenue Service and the Office of Tax
Policy of the Department of the Treasury and the Office of Advocacy of
the Small Business Administration) conduct a review of the collections
of information conducted by the Internal Revenue Service to identify
actions that the Internal Revenue Service can take to reduce the
information collection burden imposed on small business concerns,
consistent with section 3520(c)(1) of this chapter. The Director shall
include the results of the review in the annual report that the
Director submits under section 3514 of this chapter for fiscal year
2006.''.
SEC. 504. REPEAL OF EXEMPTIONS FROM PAPERWORK REDUCTION ACT, ETC.
(a) Repeals.--The following provisions of the Farm Security and
Rural Investment Act of 2002 (Public Law 107-171) are repealed:
(1) Subparagraphs (A) and (C) of section 1601(c)(2).
(2) Section 1601(c)(3).
(3) Section 2702(b)(1)(A).
(4) Section 2702(b)(2)(A).
(5) Section 2702(c).
(6) Subparagraphs (A) and (C) of section 6103(b)(2).
(7) Section 6103(b)(3).
(8) Subparagraphs (A) and (C) of section 10105(d)(2).
(9) Section 10105(d)(3).
(b) Effective Date.--The repeals of the provisions listed in
subsection (a) shall take effect 180 days after the date of the
enactment of this title.
SEC. 505. AMENDMENT OF TRUTH IN REGULATING ACT TO MAKE PERMANENT PILOT
PROJECT FOR REPORT ON RULES.
(a) Permanent Authority.--The purpose of this section is to make
permanent the authority to request the performance of regulatory
analysis to enhance Congressional responsibility for regulatory
decisions developed under the laws enacted by Congress. The Truth in
Regulating Act of 2000 (Public Law 106-312; 5 U.S.C. 801 note) is
amended--
(1) in the heading for section 4, by striking ``PILOT
PROJECT FOR'',
(2) in section 5, by striking ``$5,200,000 for each of
fiscal years 2000 through 2002'' and inserting ``$5,000,000 for
each fiscal year beginning after September 30, 2004''; and
(3) in section 6--
(A) in the heading, by striking ``and duration of
pilot project'';
(B) in subsection (a), by striking ``(a) Effective
Date.--''; and
(C) by striking subsections (b) and (c).
(b) Effective Date.--The amendments made by this section shall take
effect 90 days after the date of the enactment of this title.
SEC. 506. IMPROVED REGULATORY ACCOUNTING.
(a) Requirement for Agencies To Submit Information on Regulations
and Paperwork to OMB.--Section 624 of the Treasury and General
Government Appropriations Act, 2001 (as enacted into law by Public Law
106-554; 114 Stat. 2763A-161), is amended--
(1) by redesignating subsections (b), (c), and (d) as
subsection (c), (d), and (e), respectively; and
(2) by inserting after subsection (a) the following new
subsection:
``(b) Agency Submissions to OMB.--To carry out subsection (a), the
Director of the Office of Management and Budget shall require each
agency annually to submit to the Office of Management and Budget an
estimate of the total annual costs and benefits of Federal rules and
paperwork, to the extent feasible--
``(1) for the agency in the aggregate; and
``(2) for each agency program.''.
(b) Regulatory Budgeting.--(1) Chapter 11 of title 31, United
States Code, is amended by adding at the end the following new section:
``Sec. 1120. Regulatory budgeting
``(a) The Director of the Office of Management and Budget, after
consultation with the head of each agency, shall designate not less
than three agencies (or offices within an agency) to participate in a
study on regulatory budgeting for fiscal years 2006 and 2007. The
designated agencies shall include three regulatory agencies or offices
from among the following: the Department of Labor, the Department of
Transportation, the Department of Health and Human Services, and the
Environmental Protection Agency.
``(b) The study shall address the preparation of regulatory
budgets. Such budgets shall include the presentation of the varying
estimated levels of benefits that would be associated with the
different estimated levels of costs with respect to the regulatory
alternatives under consideration by the agency (or office within the
agency).
``(c) The Director of the Office of Management and Budget shall
include, in the accounting statement and associated report submitted to
Congress for calendar year 2006 under section 624 of the Treasury and
General Government Appropriations Act, 2001 (as enacted into law by
Public Law 106-554; 114 Stat. 2763A-161), a presentation of the
different levels of estimated regulatory benefits and costs with
respect to the regulatory alternatives under consideration for one or
more of the major regulatory programs of each of the agencies
designated under subsection (a).
``(d) In the accounting statement and associated report submitted
to Congress for calendar year 2009 under section 624 of the Treasury
and General Government Appropriations Act, 2001 (as so enacted), the
Director of the Office of Management and Budget, after consultation
with the Committees on the Budget and on Government Reform of the House
of Representatives and the Committees on the Budget and on Governmental
Affairs of the Senate, shall include a report on the study on
regulatory budgeting. The report shall--
``(1) assess the feasibility and advisability of including
a regulatory budget as part of the annual budget submitted
under section 1105;
``(2) describe any difficulties encountered by the Office
of Management and Budget and the participating agencies in
conducting the study; and
``(3) recommend, to the extent the President considers
necessary or expedient, proposed legislation regarding
regulatory budgets.
``(e) The report on the study on regulatory budgeting required
under subsection (d) shall also be submitted directly to the Committees
on the Budget and on Government Reform of the House of Representatives
and the Committees on the Budget and on Governmental Affairs of the
Senate.''.
(2) The table of sections at the beginning of such chapter is
amended by adding at the end the following new item:
``1120. Regulatory budgeting.''.
Passed the House of Representatives May 18, 2004.
Attest:
JEFF TRANDAHL,
Clerk.
Calendar No. 535
108th CONGRESS
2d Session
H. R. 2728
_______________________________________________________________________
AN ACT
To amend the Occupational Safety and Health Act of 1970 to provide for
adjudicative flexibility with regard to an employer filing of a notice
of contest following the issuance of a citation by the Occupational
Safety and Health Administration; to provide for greater efficiency at
the Occupational Safety and Health Review Commission; to provide for an
independent review of citations issued by the Occupational Safety and
Health Administration; to provide for the award of attorney's fees and
costs to very small employers when they prevail in litigation prompted
by the issuance of citations by the Occupational Safety and Health
Administration; and to amend the Paperwork Reduction Act and titles 5
and 31, United States Code, to reform Federal paperwork and regulatory
processes.
_______________________________________________________________________
May 20, 2004
Read the second time and placed on the calendar