[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2066 Introduced in Senate (IS)]


109th CONGRESS
  1st Session
                                S. 2066

  To amend the Occupational Safety and Health Act of 1970 to further 
 improve the safety and health of working environments, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 18, 2005

 Mr. Enzi (for himself, Mr. Isakson, Mr. Craig, Mr. Burr, Mr. Roberts, 
  Mr. Sessions, Mr. Warner, Mr. Gregg, and Mr. DeMint) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
  To amend the Occupational Safety and Health Act of 1970 to further 
 improve the safety and health of working environments, 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; REFERENCES.

    (a) Short Title.--This Act may be cited as the ``Occupational 
Safety Fairness Act''.
    (b) Reference.--Whenever in this Act an amendment or repeal is 
expressed in terms of an amendment to, or repeal of, a section or other 
provision, the reference shall be considered to be made to a section or 
other provision of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.).

 SEC. 2. WORKSITE-SPECIFIC COMPLIANCE METHODS.

    Section 9 of the Act (29 U.S.C. 658) is amended by adding at the 
end the following:
    ``(d) A citation issued under subsection (a) to an employer who 
violates section 5, any standard, rule, or order promulgated pursuant 
to section 6, or any regulation promulgated under this Act shall be 
vacated if such employer demonstrates that the employees of such 
employer were protected by alternative methods that are substantially 
equivalent or more protective of the safety and health of the employees 
than the methods required by such standard, rule, order, or regulation 
in the factual circumstances underlying the citation.
    ``(e) Subsection (d) shall not be construed to eliminate or modify 
other defenses that may exist to any citation.''.

 SEC. 3. DISCRETIONARY COMPLIANCE ASSISTANCE.

    Subsection (a) of section 9 of the Act (29 U.S.C. 658(a)) is 
amended--
            (1) by striking the last sentence;
            (2) by striking ``If, upon'' and inserting ``(1) If, 
        upon''; and
            (3) by adding at the end the following:
    ``(2) Nothing in this Act shall be construed as prohibiting the 
Secretary or the authorized representative of the Secretary from 
providing technical or compliance assistance to an employer in 
correcting a violation discovered during an inspection or investigation 
under this Act without issuing a citation, as prescribed in this 
section.
    ``(3) The Secretary or the authorized representative of the 
Secretary--
            ``(A) may issue a warning in lieu of a citation with 
        respect to a violation that has no significant relationship to 
        employee safety or health; and
            ``(B) may issue a warning in lieu of a citation in cases in 
        which an employer in good faith acts promptly to abate a 
        violation if the violation is not a willful or repeated 
        violation.''.

 SEC. 4. EXPANDED INSPECTION METHODS.

    (a) Purpose.--It is the purpose of this section to empower the 
Secretary of Labor to achieve increased employer compliance by using, 
at the Secretary's discretion, more efficient and effective means for 
conducting inspections.
    (b) General.--Section 8(f) of the Act (29 U.S.C. 657(f) is 
amended--
            (1) by adding at the end the following:
    ``(3) The Secretary or an authorized representative of the 
Secretary may, as a method of investigating an alleged violation or 
danger under this subsection, attempt, if feasible, to contact an 
employer by telephone, facsimile, or other appropriate methods to 
determine whether--
            ``(A) the employer has taken corrective actions with 
        respect to the alleged violation or danger; or
            ``(B) there are reasonable grounds to believe that a hazard 
        exists.
    ``(4) The Secretary is not required to conduct an inspection under 
this subsection if the Secretary believes that a request for an 
inspection was made for reasons other than the safety and health of the 
employees of an employer or that the employees of an employer are not 
at risk.''.

SEC. 5. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

    (a) Increase in Number of Members and Requirement for Membership.--
Section 12 of the Act (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) by striking subsection (f), and inserting the 
        following:
    ``(f) For purposes of carrying out its functions under this Act, 
two members of the Commission shall constitute a quorum and official 
action can be taken only on the affirmative vote of at least a majority 
of the members participating but in no case fewer than two.''.
    (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, 2009, and the other shall be appointed by the President 
for a term expiring on April 27, 2011.
    (c) Effective Date for Legal Training Requirement.--The amendment 
made by subsection (a)(1)(B), requiring a member of the Commission to 
be qualified by reason of a background in legal training, shall apply 
beginning with the two vacancies referred to in subsection (b) and all 
subsequent appointments to the Commission.

SEC. 6. AWARD OF ATTORNEYS' FEES AND COSTS.

    The Act (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.''.

SEC. 7. JUDICIAL DEFERENCE.

    Section 11(a) of the Act (29 U.S.C. 660(a)) is amended in the sixth 
sentence by inserting before the period the following: ``, and the 
conclusions of the Commission with respect to questions of law that are 
subject to agency deference under governing court precedent shall be 
given deference if reasonable''.

SEC. 8. CONTESTING CITATIONS UNDER THE OCCUPATIONAL SAFETY AND HEALTH 
              ACT OF 1970.

    (a) In General.--Section 10 of the Act (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)''.
    (b) Effective Date.--The amendments made by this section 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 Act.

SEC. 9. RIGHT TO CORRECT VIOLATIVE CONDITION.

    Section 9 of the Act (29 U.S.C. 658), as amended by section 2, is 
amended by adding at the end the following:
    ``(f) The Commission may not assess a penalty under section 17(c) 
for a non-serious violation that is not repeated or willful if the 
employer corrects the violative condition and provides the Secretary an 
abatement certification within 72 hours.''.

SEC. 10. WRITTEN STATEMENT TO EMPLOYER FOLLOWING INSPECTION.

    Section 8 of the Act (29 U.S.C. 657) is amended by adding at the 
end the following:
    ``(i) At the closing conference after the completion of an 
inspection, the inspector shall--
            ``(1) inform the employer or a representative of the 
        employer of the right of such employer to request a written 
        statement described in paragraph (2); and
            ``(2) provide to the employer or a representative of the 
        employer, upon the request of such employer or representative, 
        with a written statement that clearly and concisely provides 
        the following information:
                    ``(A) The results of the inspection, including each 
                alleged hazard, if any, and each citation that will be 
                issued, if any.
                    ``(B) The right of the employer to contest a 
                citation, a penalty assessment, an amended citation, 
                and an amended penalty assessment.
                    ``(C) An explanation of the procedure to follow in 
                order to contest a citation and a penalty assessment, 
                including when and where to contest a citation and the 
                required contents of the notice of intent to contest.
                    ``(D) The Commission's responsibility to affirm, 
                modify, or vacate the citation and proposed penalty, if 
                any.
                    ``(E) The informal review process.
                    ``(F) The procedures before the Occupational Safety 
                and Health Review Commission.
                    ``(G) The right of the employer to seek judicial 
                review.
    ``(j) No monetary penalty may be assessed with respect to any 
violation not identified in the written statement requested under 
subsection (i).''.

SEC. 11. TIME PERIODS FOR ISSUING CITATIONS.

    Section--
            (1) 9(a) of the Act (29 U.S.C. 658(a)) is amended--
                    (A) by striking ``upon inspection'' and inserting 
                ``upon the initiation of inspection'';
                    (B) by striking ``with reasonable promptness'' and 
                inserting ``within thirty working days''; and
                    (C) by inserting after the first sentence, the 
                following: ``Such 30 day period may be waived by the 
                Secretary for good cause shown, including, but not 
                limited to, cases involving death, novel issues, large 
                or complex worksites, or pursuant to an agreement by 
                the parties to extend such period.''; and
            (2) 10(a) of the Act (29 U.S.C. 659(a)) is amended--
                    (B) by striking ``within a reasonable time'' and 
                inserting ``within thirty days''; and
                    (C) by inserting after the first sentence, the 
                following: ``Such 30 days period may be waived by the 
                Secretary for good cause shown, including, but not 
                limited to, cases involving death, novel issues, large 
                or complex worksites, or pursuant to an agreement by 
                the parties to extend such period.''.

SEC. 12. TIME PERIODS FOR CONTESTING CITATIONS.

    Section 10 of the Act (29 U.S.C. 659) is amended by striking 
``fifteen'' each place it appears and inserting ``thirty''.

SEC. 13. PENALTIES.

    Section 17 of the Act (29 U.S.C. 666) is amended by inserting the 
following:
    ``(m) The Secretary shall not use `other than serious' citations as 
a basis for issuing repeat or willful citations.''.

SEC. 14. UNANTICIPATED CONDUCT.

    Section 9 of the Act (29 U.S.C. 658) is amended by adding at the 
end the following:
    ``(d) No citation may be issued under this section for any 
violation that is the result of actions by any person that are contrary 
to established, communicated, and enforced work rules that would have 
prevented the violation. This subsection shall not be construed to 
eliminate or modify elements of proof currently required to support a 
citation.''.

SEC. 15. ADOPTION OF NON-GOVERNMENTAL STANDARDS.

    The Act (29 U.S.C. 651 et seq.) is amended by adding after section 
4 the following:

``SEC. 4A. ADOPTION OF NON-GOVERNMENTAL STANDARDS.

    ``The Secretary shall not promulgate or enforce any finding, 
guideline, standard, limit, rule, or regulation that is subject to 
incorporation by reference, or modification, as the result of a 
determination reached by any organization, unless the Secretary 
affirmatively finds that the determination has been made by an 
organization and procedure that complies with the requirements of 
section 3(9). Such finding and a summary of its basis shall be 
published in the Federal Register and shall be deemed a final agency 
action subject to review by a United States District Court in 
accordance with section 706 of title 5, United States Code.''.

SEC. 16. EMPLOYEE RESPONSIBILITY.

    The Act (29 U.S.C. 651 et seq.) is amended by adding after section 
9 the following:

``SEC. 9A. EMPLOYEE RESPONSIBILITY.

    ``(a) In General.--Notwithstanding any other provision of this Act, 
an employee who, with respect to employer-provided personal protective 
equipment, willfully violates any requirement of section 5 or any 
standard, rule, or order promulgated pursuant to section 6, or any 
regulation prescribed pursuant to this Act, may be assessed a civil 
penalty, as determined by the Secretary, but not to exceed $50 for each 
violation.
    ``(b) Citations.--If, upon inspection or investigation, the 
Secretary or the authorized representative of the Secretary believes 
that an employee of an employer has, with respect to employer-provided 
personal protective equipment, violated any requirement of section 5 or 
any standard, rule, or order promulgated pursuant to section 6, or any 
regulation prescribed pursuant to this Act, the Secretary shall within 
30 days issue a citation to the employee. Each citation shall be in 
writing and shall describe with particularity the nature of the 
violation, including a reference to the provision of this Act, 
standard, rule, regulation, or order alleged to have been violated. No 
citation may be issued under this section after the expiration of 6 
months following the occurrence of any violation.
    ``(c) Notification.--
            ``(1) In general.--The Secretary shall notify an employee--
                    ``(A) by certified mail of a citation under 
                subsection (b) and the proposed penalty; and
                    ``(B) that such employee has 30 working days within 
                which to notify the Secretary that the employee wishes 
                to contest the citation or proposed penalty.
            ``(2) Final order.--If an employee does not file a 
        notification described in paragraph (1)(B) with the Secretary 
        within 30 working days, the citation and proposed penalty 
        shall--
                    ``(A) be deemed a final order of the Commission; 
                and
                    ``(B) not be subject to review by any court or 
                agency.
    ``(d) Contesting of Citation.--
            ``(1) In general.--If an employee files a notification 
        described in paragraph (1)(B) with the Secretary within 30 
        working days, the Secretary shall immediately advise the 
        Commission of such notification, and the Commission shall 
        afford the employee an opportunity for a hearing in accordance 
        with section 554 of title 5, United States Code.
            ``(2) Issuance of final order.--The Commission, after a 
        hearing described in paragraph (1), shall issue an order, based 
        on findings of fact, affirming, modifying, or vacating the 
        Secretary's citation or proposed penalty, or directing other 
        appropriate relief. Such order shall become final 30 days after 
        issuance of the order.''.
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