[House Report 108-486]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-486
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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY ACT OF 2004
_______
May 13, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Boehner, from the Committee on Education and the Workforce,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2729]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 2729) to amend the Occupational Safety
and Health Act of 1970 to provide for greater efficiency at the
Occupational Safety and Health Review Commission, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Occupational Safety and Health Review
Commission Efficiency Act of 2004''.
SEC. 2. 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 by inserting
the word ``legal'' before the word ``training''.
(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 for no more than 365
consecutive days 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.''.
(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.
Purpose
H.R. 2729, the ``Occupational Safety and Health Review
Commission Efficiency Act of 2004,'' is intended to improve the
efficiency of the Occupational Safety and Health Review
Commission (``OSHRC'' or the ``Commission''), the adjudicative
agency specifically created by Congress to hear disputes
arising under the Occupational Safety and Health Act of 1970
(the ``OSH Act''). Under current law, the Commission presently
consists of three members appointed by the President. As
testimony before the Subcommittee on Workforce Protections has
made clear, too often in the past the Commission has been
unable to act because of vacancies in its membership, the lack
of a working quorum, or a simple deadlock among its members. To
address these concerns, H.R. 2729 increases the membership of
OSHRC from three to five members, so as to ensure that the
Commission is able to function effectively and perform the
important review and adjudicatory functions delegated to it by
Congress. The bill also provides limited authority for the
President to ``hold over'' an OSHRC member until a replacement
is confirmed by the Senate. Finally, recognizing that OSHRC as
a practical matter sits as a reviewing ``court'' of decisions
of the Occupational Safety and Health Administration
(``OSHA''), H.R. 2729 specifies that ``legal'' training shall
be among the criteria assessed for membership on the
Commission.
Committee Action
H.R. 2729, the ``Occupational Safety and Health Review
Commission Efficiency Act of 2003,'' was introduced by
Congressman Charlie Norwood on July 15, 2003, and was referred
to the Subcommittee on Workforce Protections of the Committee
on Education and the Workforce. A hearing on the measure was
conducted on June 17, 2003, as a part of a more comprehensive
hearing on H.R. 1583, the ``Occupational Safety and Health
Fairness Act of 2003.'' \1\
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\1\ See Hearing on H.R. 1583, ``The Occupational Safety and Health
Fairness Act of 2003,'' before the Subcommittee on Workforce
Protections, Committee on Education and the Workforce, U.S. House of
Representatives, 108th Congress, First Session, Serial No. 108-20
(hereinafter ``Hearing on H.R. 1583'').
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Comments and views from experts in the field of safety and
health and other concerned citizens were taken on H.R. 1583 at
the June 17, 2003 hearing of the Subcommittee. At this hearing,
the Subcommittee heard testimony from Mr. Brian Landon of
Canton, Pennsylvania, testifying on behalf of the National
Federation of Independent Businesses; Mr. John Molovich, Heath
and Safety Specialist, United Steelworkers of America, of
Pittsburgh, Pennsylvania; Mr. Ephraim Cohen, a small business
owner from New York; and Arthur Sapper, Esq., an attorney of
the law firm McDermott, Will & Emery in Washington, DC,
testifying on behalf of the U. S. Chamber Commerce. Legislation
incorporating section 5 of H.R. 1583 was subsequently
introduced as H.R. 2729 on July 15, 2003. The content of H.R.
2729, as introduced, is identical to section 5 of H.R. 1583.
On July 24, 2003, the Subcommittee on Workforce Protections
favorably reported H.R. 2729, without amendment, by voice vote.
On May 5, 2004, the Committee on Education and the
Workforce considered H.R. 2729. An amendment by Subcommittee
Chairman Norwood in the nature of a substitute was accepted by
unanimous consent. The substitute amendment: (a) changed the
title of the bill from the ``Occupational Safety and Health
Review Commission Efficiency Act of 2003'' to the
``Occupational Safety and Health Review Commission Efficiency
Act of 2004;'' (b) limited the duration of time for which the
President could extend the term of a member of OSHRC to no more
than 365 consecutive days; and (c) eliminated a provision in
the bill authorizing the Chairman of OSHRC to delegate the work
of the full Commission to panels of three Commission members.
The Committee ordered H.R. 2729, as thus amended, favorably
reported to the House of Representatives by a roll call vote of
24 yeas and 20 nays.
Summary
It is Congress' obligation not only to create mechanisms to
adequately enforce the law, but also to ensure that those
mechanisms, once implemented, perform efficiently and up to
Congressional expectations. H.R. 2729 remedies a situation
where the mechanisms established by Congress to adjudicate
disputes arising under the OSH Act are not performing
consistently in an adequate fashion. Accordingly, H.R. 2729
prescribes narrowly-crafted remedial action, increasing the
membership of OSHRC from three members to five, thereby
improving overall performance and ensuring continuity and
consistency in practice.
Committee Views
Since its creation in 1970, OSHRC too often has been unable
to maintain an effective working quorum, and thus has been
unable to perform the important adjudicatory functions
delegated to it by Congress. OSHRC remains threatened with this
failure to maintain the quorum needed to function. In the
Committee's opinion, this problem can only be corrected through
the legislative solution contained in H.R. 2729.
Background: The Occupational Safety and Health Review Commission
Both OSHA and OSHRC were created in 1970 under the OSH Act.
In drafting the OSH Act, Congress extended new and
unprecedented powers to OSHA to ensure a safer and healthier
work place for millions of American working men and women. In
granting OSHA those extensive powers, however, Congress also
put in place a unique check on their unfettered use. This check
was intended to be discharged by OSHRC, through the process of
an independent review by that Commission of all disputed areas
under the OSH Act. As OSHRC describes itself:
OSHRC is an independent, adjudicatory agency created
by [Congress under] the Occupational Safety and Health
Act of 1970 (OSH Act). Its sole statutory mandate is to
serve as an administrative court providing just and
expeditious resolution of disputes involving the
Occupational Safety and Health Administration (OSHA),
employers charged with violations of federal safety and
health standards, and employees and/or their
representatives. The review Commission was created by
Congress as an agency completely independent of the
Department of Labor to ensure that OSHA's
enforcementactions are carried out in accordance with the law and that
all parties are treated consistent with due process when disputes with
OSHA arise.\2\
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\2\ See Occupational Safety and Health Review Commission, Fiscal
Year 2003 Performance Report to Congress, February 2004.
OSHRC Administrative Law Judges (``ALJs'') hear and decide
cases in the first instance. The ALJ's decision and order
becomes a final order of OSHRC unless, within thirty days of
its docketing, unless either party requests (or one of the
three Commission members directs) that the decision be
reviewed. In its review, OSHRC may affirm, reverse, or modify
the ALJ's decision in its final order. Once a final order of
the Commission is issued, a party may seek review of OSHRC's
decision in the appropriate federal court of appeals.\3\
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\3\ See 29 U.S.C. Sec. 660(a).
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Under current law, the membership of OSHRC is set at three
members who are appointed by the President with the advice and
consent of the Senate; one member is designated by the
President as Chairperson.\4\ Members serve staggered six-year
terms, meaning that under current law, a vacancy occurs every
two years.\5\ Two members are required to constitute a quorum,
and irrespective of the number of sitting members, OSHRC only
has authority to take action on the affirmative vote of two
members.\6\
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\4\ See 29 U.S.C. Sec. 661(a).
\5\ See 29 U.S.C. Sec. 661(b).
\6\ See 29 U.S.C. Sec. 661(f); see also generally, Occupational
Safety and Health Law, Second Edition, American Bar Association,
Section of Labor and Employment Law, at 298-351.
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The impact of the lack of a working quorum at OSHRC
In testimony before the Subcommittee on Workforce
Protections, one former Deputy General Counsel of OSHRC, Arthur
G. Sapper, Esq., noted that several critical and well-
documented inefficiencies result from a lack of a working
quorum at OSHRC.\7\
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\7\ See Testimony of Arthur G. Sapper, Esq., Hearing on H.R. 1583,
at 65-67.
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Foremost, the lack of a working quorum means that OSHRC is
unable to perform the critical functions it was designated by
Congress to perform, rendering the entire regulatory scheme
devised by Congress for the resolution of disputes between OSHA
and employers non-functional. The problems experienced by OSHRC
in maintaining the continuous quorum needed to conduct business
were summarized in testimony before the Subcommittee on
Workforce Protections as follows:
For over two thirds of its existence, the Commission
has been so paralyzed by frequent vacancies that it has
been unable to do its job. For over half the time since
1982, the Commission has had two or fewer members and,
for over a third of that time, it has had only two
members. For twenty percent of that time, it lacked
even a quorum of two. Between 1996 and 1999, it had a
full complement for only a third of the time. Recently,
the Commission had only one member for nine months
during fiscal year 2002, from the end of December 2001
until late August 2002.\8\
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\8\ See id. at 65.
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As the table set forth below demonstrates, the breaks in
service that result in a potential loss of a working quorum are
not only frequent, but occur almost routinely at the expiration
of any member's term. This results in two types of situations
where OSHRC is threatened with such a lack of a working quorum.
First, as highlighted below, in too many instances two of
three seats on the Commission have been vacant, making it
legally impossible for any action to be taken at OSHRC in light
of the OSH Act's direction that such action may be taken by the
Commission only by the affirmative vote of two members. Second,
and more frequently occurring, are situations where there has
been one seat vacant for a prolonged period of time. As noted
above, because the OSH Act dictates that action may only be
taken by the affirmative vote of two members of the Commission,
any disagreement on any point renders a two-member OSHRC
incapable of taking action, resulting in stalemate. Indeed, the
data set forth below confirms that for approximately one-third
of its existence, OSHRC had been in a position where it was
either legally unable to adjudicate (i.e., only one member
sitting), or in a position where any disagreement hindered any
affirmative action (i.e., only two members sitting).
Finally, the Subcommittee agrees with the testimony before
it that the breaks in service of OSHRC members and the
resulting lack of a functioning quorum have greatly damaged
public respect for OSHRC. As summarized in that testimony, a
federal agency fully-staffed with government employees but
lacking the necessary complement of Commissioners and thus
unable to fully and effectively perform the functions for which
it was structured is likely to breed public disdain.\9\
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\9\ See id. at 67.
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Increasing the membership of OSHRC from three to five
To ensure that OSHRC can maintain a viable working quorum
and is able to discharge the responsibilities with which it is
charged, H.R. 2729 increases the membership of the Commission
from three members to five.\10\ H.R. 2729 draws this solution
based on the experience of the federal Mine Safety and Health
Review Commission (``MSHRC''), a ``sister agency'' of OSHRC
with adjudicatory authority over the federal Mine Safety and
Health Administration (``MSHA'').\11\ While there are
similarities between the mission of MSHA and OSHA, there is one
significant difference: the composition of the adjudicative
commission tasked with adjudicating disputes between employers
and the agency.
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\10\ Subsection 2(b) of H.R. 2729 specifies that the terms of
office of the two new members of OSHRC created by this measure will be
for terms expiring on April 27, 2006 and April 27, 2008. These dates
are chosen to insure that each of the five members of OSHRC have terms
that end one year apart. Currently, the terms of the three incumbent
members expire on April 27, 2005, 2007 and 2009.
\11\ OSHRC and MSHRC are viewed as ``sister'' agencies inasmuch as
each was created as an independent commission tasked by Congress to
resolve the disputes arising between employers and a government agency
in the area of workplace safety and health.
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In contrast to OSHRC's membership of three, MSHRC has five
members. The Committee notes that based on the evidence before
it, it appears that MSHRC has not historically experienced the
high degree of turbulence in maintaining a working quorum that
has plagued OSHRC. Simply stated, despite the fact that there
are sometimes vacancies that remain open following the
expiration of a term of office on MSHRC, the additional two
seats on MSHRC have served to stabilize a necessary working
quorum at MSHRC and ensure necessary continuity in its
administration of the dispute resolution process. It is the
Committee's belief that a five-member OSHRC similarly will
experience less turbulence caused by vacancies in its
membership. The stability brought to OSHRC by the addition of
two members will, in the Committee's opinion, significantly
increase its efficiency and its effectiveness.
Finally, the Committee notes that during discussion of
potential changes to OSHRC, the suggestion that members of the
Commission be designated by party affiliation or on the basis
of union membership or other interest-group affiliation was
considered and soundly rejected. It is the Committee's strong
opinion that each member of OSHRC should be one who applies the
law free from any bias that might come from political or
interest-group designation. As would be the case with any other
appointment of a judge to the federal bench, the Committee
expects the President's appointments, with the advice and
consent of the Senate, to be based upon an ability to apply the
law in an objective and even-handed fashion.
Other necessary remedial actions
Holdover Membership. Since the Committee has identified
breaks in the continuity of service as the cause of frequent
lacks of a working quorum at OSHRC, and since these breaks in
service often coincide with the expiration of a term of service
by any member, the Committee proposes in H.R. 2729 the addition
of a new provision that would permit the President to invite an
incumbent member whose term has expired to ``hold over'' until
a replacement can be confirmed by the Senate for service on
OSHRC. The Committee believes that this would effectively limit
those times in which OSHRC is without a working quorum, while
not creating the possibility of abuse in the appointment
process through, for example, extended ``hold over''
appointments. This check on abuse is ensured by H.R. 2729's
inclusion of language limiting the term of any ``hold-over''
OSHRC member to no more than 365 days.\12\
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\12\ To date, the use of recess appointments at OSHRC has been the
only tool available throughout OSHRC's history that has been able to
avoid longer periods where a working quorum was missing. For a complete
history of the Commission's membership, chairmanship, and recess
appointments, see ``Agency Chairmen and Commissioners,'' available at
http://www.oshrc.gov/about/agency-chairmen.html.
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Legal Training. To improve the efficiency and effectiveness
of OSHRC's work, H.R. 2729 adds the word ``legal'' directly
before the word ``training'' at section 12(a) of the OSH
Act.\13\ Currently, there are three statutory qualifiers
currently specified in the OSH Act to guide the President in
his selection process for choosing members for service on
OSHRC: training, education, and experience.\14\ As noted
earlier, any decision or final order of OSHRC is subject to
direct appeal to an appropriate federal court of appeals,
making it important that the work product of OSHRC be highly
professional and, of necessity, ``legal'' in nature. In light
of this fact, the Committee believes that adding the
requirement that the training brought to the position of OSHRC
member be ``legal'' in nature will help improve OSHRC's work
product. While the addition of the requirement that training be
legal in character will not prevent the selection of any other
qualified individual whose experience and/or education is of a
nature to qualify him or her for service on OSHRC, the
Committee believes that this change will benefit OSHRC and the
parties adjudicating their disputes before it.
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\13\ See 29 U.S.C. Sec. 661(a).
\14\ See id.
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CONCLUSION
It is Congress' obligation to not only create mechanisms to
adequately enforce the law, but also to ensure that those
mechanisms, once implemented, perform efficiently and up to
congressional expectations. H.R. 2729 prescribes narrowly-
crafted remedial action, increasing the membership of OSHRC
from three members to five, and making other necessary changes
in the law, thereby improving overall agency performance and
ensuring continuity and consistency in practice. H.R. 2729
effectively discharges the obligation of Congress through
amendments to the OSH Act which will improve the performance of
OSHRC and ensure fairness and timely adjudication of disputes
among the parties brought before it.
Section-by-Section Analysis
Section 1. Short Title
This act may be cited as the ``Occupational Safety and
Health Review Commission Efficiency Act of 2004.''
Section 2. Occupational Safety and Health Review Commission
This section amends the Occupational Safety and Health Act
of 1970 by adding two additional members to the Occupational
Safety and Health Review Commission, and specifies that the
terms of office of the two newly-appointed members to OSHRC
created will be for terms expiring on April 27, 2006 and April
27, 2008. In addition, this section stipulates that all
Commissioners be chosen from among persons who by reason of
legal training, education or experience are qualified to serve
in the position. Finally, this section authorizes the President
to extend the expiring term of a member of OSHRC until a
replacement can be confirmed by the Senate for up to 365 days.
Explanation of Amendments
The amendment in the nature of a substitute is explained in
the body of this report.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act (CAA), requires a description of the
application of this bill to the legislative branch. H.R. 2729
amends the Occupational Safety and Health Act (OSH Act) to
improve the efficiency of the Occupational Safety and Health
Review Commission (``OSHRC'' or the ``Commission''). Section
215 of the CAA applies certain requirements of the OSH Act, to
the legislative branch. The Committee intends to make the
provisions of this bill available to legislative branch
employees and employers in the same way as it is made available
to private sector employees and employers under this
legislation.
Unfunded Mandate Statement
Section 423 of the Congressional Budget & Impoundment
Control Act requires a statement of whether the provisions of
the reported bill include unfunded mandates. The Committee
received a letter regarding unfunded mandates from the Director
of the Congressional Budget Office and as such the Committee
agrees that the bill does not contain any unfunded mandates.
See infra.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the body of this report.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 2729 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 11, 2004.
Hon. John A. Boehner,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2729, the
Occupational Safety and Health Review Commission Efficiency Act
of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Shawn Bishop.
Sincerely,
Douglas Holtz-Eakin, Director.
Enclosure.
H.R. 2729--Occupational Safety and Health Review Commission Efficiency
Act of 2004
Summary: H.R. 2729 would amend the Occupational Safety and
Health Act to increase the membership of the Occupational
Safety and Review Commission (OSHRC) from three to five.
CBO estimates that implementing H.R. 2729 would cost $1
million in 2005 and $5 million over the 2005-2009 period,
assuming the appropriation of the estimated amounts. H.R. 2729
would not affect direct spending or revenues.
H.R. 2729 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2729 is shown in the following table.
The costs of this legislation fall within budget function 550
(health).
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By fiscal year, in millions of dollars--
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2004 2005 2006 2007 2008 2009
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SPENDING SUBJECT TO APPROPRIATION
OSHRC Spending Under Current Law:
Estimated Authorization Level\1\...................... 10 10 11 11 11 12
Estimated Outlays..................................... 10 11 11 11 11 12
Proposed Changes:
Estimated Authorization Level......................... 0 1 1 1 1 1
Estimated Outlays..................................... 0 1 1 1 1 1
OSHRC Spending Under H.R. 2729:
Estimated Authorization Level......................... 10 11 12 12 12 13
Estimated Outlays..................................... 10 12 12 12 12 13
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\1\ The 2004 level is the amount appropriated for that year for the Occupational Safety and Health Review
Commission. The amounts shown for 2005 through 2009 are baseline projections that assume annual increases for
anticipated inflation.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted in the fall of 2004, that the estimated
amounts will be appropriated for each year, and that outlays
will follow historical spending patterns for the authorized
activities.
H.R. 2729 would amend the Occupational Safety and Health
Act to increase the membership of OSHRC from three to five.
OSHRC is an independent federal agency created to adjudicate
contests of citations or penalties resulting from inspection of
work places; therefore, OSHRC functions as an administrative
court.
According to agency documents, each Commissioner is
appointed for a six-year term and is aided directly by two
professional staff who are responsible for providing assistance
and legal counsel on all pending matters. CBO assumes the
current staffing practice would be extended under the bill. CBO
estimates that implementing H.R. 2729 would cost $1 million in
2005 and $5 million over the 2005-2009 period, assuming the
appropriation of the estimated amounts.
Intergovernmental and private-sector impact: H.R. 2729
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Shawn Bishop; Impact
on State, Local, and Tribal Governments: Leo Lex; and Impact on
the Private Sector: Meena Fernandez.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Statement of General Performance Goals and Objectives
In accordance with Clause (3)(c) of House Rule XIII, the
goal of H.R. 2729 is to amend the Occupational Safety and
Health Act (OSH Act) to improve the efficiency of the
Occupational Safety and Health Review Commission (``OSHRC'' or
the ``Commission''). The Committee expects the Department of
Labor to implement the changes to the law in accordance with
these stated goals.
Constitutional Authority Statement
H.R. 2729 amends the Occupational Safety and Health Act,
and thus falls within the scope of Congressional powers under
Article I, section 8, clause 3 of the Constitution of the
United States to the same extent as does the OSH Act.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 2729. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 12 OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
the occupational safety and health review commission
Sec. 12. (a) The Occupational Safety and Health Review
Commission is hereby established. The Commission shall be
composed of [three] five members who shall be appointed by the
President, by and with the advice and consent of the Senate,
from among persons who by reason of legal training, education,
or experience are qualified to carry out the functions of the
Commission under this Act. The President shall designate one of
the members of the Commission to serve as Chairman.
(b) The terms of members of the Commission shall be six
years except that [(1) the members of the Commission first
taking office shall serve, as designated by the President at
the time of appointment, one for a term of two years, one for a
term of four years, and one for a term of six years, and (2) a
vacancy caused by the death, resignation, or removal of a
member prior to the expiration of the term for which he was
appointed shall be filled only for the remainder of such
unexpired term. A member of the Commission may be removed by
the President for inefficiency, neglect of duty, or malfeasance
in office.] 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 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.
* * * * * * *
MINORITY VIEWS
We oppose H.R. 2729. H.R. 2729 amends section 12 of the
Occupational Safety and Health Act of 1970 (OSH Act) to expand
the Occupational Safety and Health Review Commission (OSHRC)
from three members to five members. The bill also appears to
require that Commission members have legal training and
provides that the President may extend the term of a member
until the Senate has confirmed a successor.
The Commission has functioned with three members since its
establishment in 1970. The authors of the OSH Act did not feel
there was sufficient work to justify five members and
experience does not demonstrate otherwise. The Majority states:
``While there are similarities between the mission of MSHA [the
Mine Safety and Health Administration] and OSHA [the
Occupational Safety and Health Administration], there is one
significant difference: the composition of the adjudicative
commission tasked with adjudicating disputes between employers
and the agency.'' (See Majority discussion under the subtitle
``Increasing the Membership of OSHRC from Three to Five.'') It
is true that the Mine Safety and Health Review Commission
(MSHRC) has five members, while OSHRC only has three. However,
it is also true that MSHRC has broader responsibilities,
including responsibility for resolving whistleblower
complaints, than does OSHRC. The Majority wants to expand the
size of OSHRC to make it commensurate with MSHRC, but is
unwilling to give OSHRC commensurate duties.
While expanding the Commission from three to five members,
H.R. 2729 neither permits the creation of sub panels nor
changes the statutory definition of a Commission quorum. As
introduced, H.R. 2729 authorized the establishment of sub
panels. Concern had been expressed, however, that, as
intorduced, the bill authorized the Review Commission
Chairperson to establish sub panels but did not ensure that the
creation of sub panels would be random and impartial, as is the
case at the National Labor Relations Board or within the Courts
of Appeal. Whether it was as a result of that concern is
uncertain, but the Manager's amendment adopted in Committee
deleted those provisions authorizing sub panels. Consequently,
as reported by the Committee, H.R. 2729 would create a unique
circumstance in which a minority of the Commission would
constitute a quorum. This seems a very serious flaw.
The addition of the word ``legal'' as a modifier to
training is also problematic, even nonsensical. The OSH Act
requires that the President considers the ``training,
education, and experience'' of potential Review Commission
nominees. If enacted, H.R. 2729 would require the President to
consider the ``legal training, education, and experience'' of
potential nominees. The Majority states that ``the requirement
that training be legal in character will not prevent the
selection of any other qualified individual whose experience
and/or education is of a nature to qualify him or her for
service on OSHRC.'' (See Majority discussion under the subtitle
``Other Necessary Remedial Actions.'') In other words, the
addition of the word ``legal'' does not restrict the President
to only appointing those with legal training. The President may
still appoint individuals exclusively on the basis of their
experience or education, even if they do not have ``legal
training.'' The efect then of adding the word ``legal'' as a
modifier of ``training'' is only to limiit the kind of training
that the President may consider. Of course, that makes no sense
whatsoever. Current law, which does not preclude the President
from considering legal training or even legal education among
all other types of training or education, seems preferable to
H.R. 2729 which arbitrarily limits the kinds of training the
President may consider. Health and safety experts, who may not
have legal training but who may nevertheless be very
knowledgeable about the OSH Act and agency and Commission
procedures, may be unfairly and unwisely excluded from
consideration for positions on the Commission. The Commission
and workers' health and safety would suffer from such an
arbitrary exclusion of non-lawyer talent and expertise.
George Miller.
Carolyn McCarthy.
Dennis J. Kucinich.
Danny K. Davis.
Betty McCollum.
Ron Kind.
Dale E. Kildee.
Major R. Owens.
Rubin Hinojosa.
Ed Case.
Susan A. Davis.
John F. Tierney.
Tim Ryan.
Raul M. Grijalva.
Timothy Bishop.
Rush Holt.
Chris Van Hollen.
Lynn Woolsey.
Robert Andrews.
Donald M. Payne.
Denise L. Majette.
David Wu.