[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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