[House Report 108-486]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-486

======================================================================


 
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\
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \3\ See 29 U.S.C. Sec. 660(a).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \7\ See Testimony of Arthur G. Sapper, Esq., Hearing on H.R. 1583, 
at 65-67.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\ See id. at 65.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \9\ See id. at 67.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \13\ See 29 U.S.C. Sec. 661(a).
    \14\ See id.
---------------------------------------------------------------------------

                               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).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                           -----------------------------------------------------
                                                              2004     2005     2006     2007     2008     2009
----------------------------------------------------------------------------------------------------------------
                                        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
----------------------------------------------------------------------------------------------------------------
\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.

                                
