[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.