To amend the Occupational Safety and Health Act of 1970 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.

February 10, 2005

Mr. NORWOOD (for himself, Mr. BOEHNER, Mr. SAM JOHNSON of Texas, Mr. MCKEON, Mr. EHLERS, Mrs. BIGGERT, Mr. KELLER, Mr. WILSON of South Carolina, Mr. KLINE, Mr. PAUL, and Mr. NEUGEBAUER) introduced the following bill; which was referred to the Committee on Education and the Workforce

To amend the Occupational Safety and Health Act of 1970 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. SHORT TITLE.

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

SEC. 2. 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.'.

END