To amend the Occupational Safety and Health Act of 1970 to provide for adjudicative flexibility with regard to the filing of a notice of contest by an employer following the issuance of a citation or proposed assessment of a penalty by the Occupational Safety and Health Administration, to provide for greater efficiency at the Occupational Safety and Health Review Commission, to provide for judicial deference to conclusions of law determined by the Occupational Safety and Health Review Commission with respect to an order issued by the Commission, and to provide for the award of attorneys' fees and costs to small employers when such employers prevail in litigation prompted by the issuance of a citation by the Occupational Safety and Health Administration.

        [Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 739 Referred in Senate (RFS)]

1st Session
H. R. 739

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

July 13, 2005

Received; read twice and referred to the Committee on Health,
Education, Labor, and Pensions

_______________________________________________________________________

AN ACT

To amend the Occupational Safety and Health Act of 1970 to provide for
adjudicative flexibility with regard to the filing of a notice of
contest by an employer following the issuance of a citation or proposed
assessment of a penalty by the Occupational Safety and Health
Administration; to provide for greater efficiency at the Occupational
Safety and Health Review Commission; to provide for judicial deference
to conclusions of law determined by the Occupational Safety and Health
Review Commission with respect to an order issued by the Commission;
and to provide for the award of attorneys' fees and costs to small
employers when such employers prevail in litigation prompted by the
issuance of a citation by the Occupational Safety and Health
Administration.

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
OF 2005

Sec. 101. Short title.
Sec. 102. Contesting citations under the Occupational Safety and Health
Act of 1970.
Sec. 103. Effective date.
TITLE II--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY
ACT OF 2005

Sec. 201. Short title.
Sec. 202. Occupational Safety and Health Review Commission.
TITLE III--OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA
CITATIONS ACT OF 2005

Sec. 301. Short title.
Sec. 302. Independent review.
TITLE IV--OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO
JUSTICE ACT OF 2005

Sec. 401. Short title.
Sec. 402. Award of attorneys' fees and costs.

TITLE I--OCCUPATIONAL SAFETY AND HEALTH SMALL BUSINESS DAY IN COURT ACT
OF 2005

SEC. 101. SHORT TITLE.

This title may be cited as the ``Occupational Safety and Health
Small Business Day in Court Act of 2005''.

SEC. 102. CONTESTING CITATIONS UNDER THE OCCUPATIONAL SAFETY AND HEALTH
ACT OF 1970.

Section 10 of the Occupational Safety and Health Act of 1970 (29
U.S.C. 659) is amended--
(1) in the second sentence of subsection (a), by inserting
after ``assessment of penalty'' the following: ``(unless such
failure results from mistake, inadvertence, surprise, or
excusable neglect)''; and
(2) in the second sentence of subsection (b), by inserting
after ``assessment of penalty'' the following: ``(unless such
failure results from mistake, inadvertence, surprise, or
excusable neglect)''.

SEC. 103. EFFECTIVE DATE.

The amendments made by this title shall apply to a citation or
proposed assessment of penalty issued by the Occupational Safety and
Health Administration that is issued on or after the date of the
enactment of this title.

TITLE II--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY
ACT OF 2005

SEC. 201. SHORT TITLE.

This title may be cited as the ``Occupational Safety and Health
Review Commission Efficiency Act of 2005''.

SEC. 202. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

(a) Increase in Number of Members and Criteria for Membership.--
Section 12 of the Occupational Safety and Health Act of 1970 (29 U.S.C.
661) is amended--
(1) in the second sentence of subsection (a)--
(A) by striking ``three members'' and inserting
``five members''; and
(B) by inserting ``legal'' before ``training'';
(2) in the first sentence of subsection (b), by striking
``except that'' and all that follows through the period and
inserting the following: ``except that 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 the term of that member 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 a member
was appointed shall be filled only for the remainder of such
term.''; and
(3) in subsection (f), by striking ``two members'' the
first place it appears and inserting ``three members''.
(b) New Positions.--Of the two vacancies for membership on the
Occupational Safety and Health Review Commission created by subsection
(a)(1)(A), one shall be appointed by the President for a term expiring
on April 27, 2008, and the other shall be appointed by the President
for a term expiring on April 27, 2010.
(c) Effective Date.--The amendment made by subsection (a)(1)(B)
shall apply beginning with the 2 vacancies referred to in subsection
(b) and all subsequent appointments to the Commission.

TITLE III--OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA
CITATIONS ACT OF 2005

SEC. 301. SHORT TITLE.

This title may be cited as the ``Occupational Safety and Health
Independent Review of OSHA Citations Act of 2005''.

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 at the end the following: ``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 OF 2005

SEC. 401. SHORT TITLE.

This title may be cited as the ``Occupational Safety and Health
Small Employer Access to Justice Act of 2005''.

SEC. 402. AWARD OF ATTORNEYS' FEES AND COSTS.

The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et
seq.) is amended by redesignating sections 32, 33, and 34 as sections
33, 34, and 35, respectively, and by inserting after section 31 the
following new section:

``award of attorneys' fees and costs

``Sec. 32. (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 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) shall apply
to proceedings commenced on or after the date of enactment of
this section.
``(2) Court proceedings.--Subsection (b) shall apply to
proceedings for judicial review commenced on or after the date
of enactment of this section.''.

Passed the House of Representatives July 12, 2005.

Attest:

JEFF TRANDAHL,

Clerk.