[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 742 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 742

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.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           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

_______________________________________________________________________

                                 A BILL


 
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.''.
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