7-12-05
Bill Passed House 256-164
109th CONGRESS
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. 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. 202. Occupational Safety and Health Review Commission.
TITLE III--OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA CITATIONS
ACT OF 2005
Sec. 302. Independent review.
TITLE IV--OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO JUSTICE
ACT OF 2005
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.
`(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.
END
