[House Report 109-47]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 109-47
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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY ACT OF 2005
_______
April 18, 2005.--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. 740]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 740) 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 2005''.
SEC. 2. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.
(a) Increase in Number of Members and Criteria for Membership.--
Section 12 of the Occupational Safety and Health Act of 1970 (29 U.S.C.
661) is amended--
(1) in the second sentence of subsection (a)--
(A) by striking ``three members'' and inserting
``five members''; and
(B) by inserting ``legal'' before ``training'';
(2) in the first sentence of subsection (b), by striking
``except that'' and all that follows through the period and
inserting the following: ``except that the President may extend
the term of a member for no more than 365 consecutive days to
allow a continuation in service at the pleasure of the
President after the expiration of the term of that member until
a successor nominated by the President has been confirmed to
serve. Any vacancy caused by the death, resignation, or removal
of a member before the expiration of a term for which a member
was appointed shall be filled only for the remainder of such
term.''; and
(3) in subsection (f), by striking ``two members'' the first
place it appears and inserting ``three members''.
(b) New Positions.--Of the two vacancies for membership on the
Occupational Safety and Health Review Commission created by subsection
(a)(1)(A), one shall be appointed by the President for a term expiring
on April 27, 2008, and the other shall be appointed by the President
for a term expiring on April 27, 2010.
(c) Effective Date.--The amendment made by subsection (a)(1)(B) shall
apply beginning with the 2 vacancies referred to in subsection (b) and
all subsequent appointments to the Commission.
Purpose
H.R. 740, the ``Occupational Safety and Health Review
Commission Efficiency Act of 2005,'' 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. 740 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. 740 specifies that ``legal'' training shall be
among the criteria assessed by the President for membership on
the Commission.
Committee Action
109th Congress
H.R. 740, the ``Occupational Safety and Health Review
Commission Efficiency Act of 2005,'' was introduced by
Congressman Charlie Norwood on February 10, 2005, and was
referred to the Committee on Education and the Workforce and
held at full committee. In light of the extensive legislative
record developed with respect to substantively identical
legislation in the 107th and 108th Congresses, the Committee
held no hearings on the bill prior to markup.
On April 13, 2005, the Committee favorably reported the
bill to the House of Representatives, as amended by the
amendment in the nature of a substitute described herein, by a
roll call vote of 27 to 19.
The amendment in the nature of a substitute adopted by the
Committee is substantively identical to H.R. 2729 as passed by
the House in the 108th Congress.
108th Congress
On April 3, 2003, comprehensive OSHA reform legislation,
H.R. 1583, the ``Occupational Safety and Health Fairness Act of
2003,'' was introduced in the House. The Subcommittee on
Workforce Protections held a hearing on H.R. 1583 on June 17,
2003.\1\ 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, Health 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 of Commerce.
Legislation incorporating section 5 of H.R. 1583 was
subsequently introduced as H.R. 2729, the ``Occupational Safety
and Health Review Commission Efficiency Act of 2003'' on July
15, 2003.
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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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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.
On May 18, 2004, the full House of Representatives passed
the measure as amended by a vote of 228-199.\2\
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\2\ Pursuant to the rule providing for its consideration, H. Res.
645, the bill was deemed amended to address a technical error relating
to the bill's provision for an OSHRC quorum upon adoption of the rule.
Further to the provisions of H. Res. 645, upon approval of the bill it
was enrolled with four other bills (H.R. 2728, H.R. 2730, H.R. 2731,
and H.R. 2432) and thus transmitted to the Senate.
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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. 740 remedies a situation where
the mechanisms established by Congress to adjudicate disputes
arising under the OSH Act are not performing in an adequate
fashion. Accordingly, H.R. 740 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. 740.
Background: The Occupational Safety and Health Review Commission
Both the Occupational Safety and Health Administration
(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 enforcement
actions are carried out in accordance with the law and
that all parties are treated consistent with due
process when disputes with OSHA arise.\3\
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\3\ 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.\4\
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\4\ 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.\5\ Members serve staggered six-year
terms, meaning that under current law, a vacancy occurs every
two years.\6\ 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.\7\
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\5\ See 29 U.S.C. Sec. 661(a).
\6\ See 29 U.S.C. Sec. 661(b).
\7\ See 29 U.S.C. 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.\8\
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\8\ See Testimony of Arthur G. Sapper, Esq., Hearing on H.R. 1583,
at 65-67.
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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.\9\
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\9\ 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).
The Committee agrees with the testimony before the
Workforce Protections Subcommittee 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.\10\
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\10\ 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. 740 increases the membership of the Commission
from three members to five.\11\ The bill further establishes
that three members shall constitute a quorum of the five-member
Commission, and that action may be taken only upon the
affirmative vote of two Commission members. H.R. 740 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'').\12\ 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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\11\ Subsection 2(b) of H.R. 740 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.
\12\ 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 in prior Congresses, 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. 740 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 inclusion of
language limiting the term of any ``hold-over'' OSHRC member to
no more than 365 days.\13\
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\13\ 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. 740 adds the word ``legal'' directly
before the word ``training'' at section 12(a) of the OSH
Act.\14\ Currently, there are three statutory criteria
specified in the OSH Act to guide the President in his
selection process for choosing members for service on OSHRC:
training, education, and experience.\15\ 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 an 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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\14\ See 29 U.S.C. Sec. 661(a).
\15\ 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. 740 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. 740
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: H.R. 740
Section 1. Short Title
This act may be cited as the ``Occupational Safety and
Health Review Commission Efficiency Act of 2005.''
Section 2. Occupational Safety and Health Review Commission
This section amends Section 12 of 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. 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.
Finally, this section provides that the provision setting forth
that ``legal'' training is a criterion for Commission
appointment shall be effective with the two new vacancies
created under the bill and thereafter.
Explanation of Amendments
The amendment in the nature of 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. 740
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. 740 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 15, 2005.
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. 740, the
Occupational Safety and Health Review Commission Efficiency Act
of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Tom Bradley.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
H.R. 740--Occupational Safety and Health Review Commission Efficiency
Act of 2005
Summary: H.R. 740 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. 740 would cost $1
million in 2006 and $6 million over the 2006-2010 period,
assuming the appropriation of the estimated amounts. H.R. 740
would not affect direct spending or revenues.
H.R. 740 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. 740 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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2005 2006 2007 2008 2009 2010
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SPENDING SUBJECT TO APPROPRIATION
OSHRC Spending Under Current Law:
Estimated Authorization Level \1\..................... 11 11 12 12 13 13
Estimated Outlays..................................... 11 11 12 12 13 13
Proposed Changes:
Estimated Authorization Level......................... 0 1 1 1 1 1
Estimated Outlays..................................... 0 1 1 1 1 1
OSHRC Spending Under H.R. 740:
Estimated Authorization Level......................... 11 12 13 13 14 14
Estimated Outlays..................................... 11 12 13 13 14 14
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\1\ The 2005 level is the amount appropriated for that year for the Occupational Safety and Health Review
Commission. The amount shown for 2006 through 2010 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 2005, that the estimated
amounts will be appropriated for each year, and that outlays
will follow historical spending patterns for the authorized
activities.
H.R. 740 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 and
that OSHA would reconfigure space at headquarters to
accommodate the new commissioners and their staff. CBO
estimates that implementing H.R. 740 would cost $1 million in
2006 and $6 million over the 2006-2010 period, assuming the
appropriation of the estimated amounts.
Intergovernmental and private-sector impact: H.R. 740
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: Tom Bradley, Impact on
State, Local, and Tribal Governments: Leo Lex and Impact on the
Private Sector: Peter Richmond.
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. 740 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. 740 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. 740. 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.] 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.
A member of the Commission may be removed by the President for
inefficiency, neglect of duty, or malfeasance in office.
* * * * * * *
(f) For the purpose of carrying out its functions under
this Act, [two] three members of the Commission shall
constitute a quorum and official action can be taken only on
the affirmative vote of at least two members.
* * * * * * *
MINORITY VIEWS
We oppose H.R. 740. H.R. 740 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 appears to require
that Commission members have legal training and provides that
the President may extend the term of a member for up to a year
or 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. 740 neither permits the creation of sub panels nor changes
the statutory definition of a Commission quorum. As initially
introduced in the last Congress, this legislation (H.R. 2729 in
the 108th Congress) authorized the establishment of sub panels.
Concern was expressed, however, that, as introduced, 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. Then, prior to floor consideration the
authors of the legislation increased from two to three the
number of members necessary for the Commission to take official
action. H.R. 740 as introduced was identical to H.R. 2729 after
it was considered on the floor in the last Congress. However,
the bill was amended in Committee to reduce the number of
members necessary for the Commission to take official action
from three back to two. Consequently, as reported by the
Committee, H.R. 740 provides that a minority of the Commission
may take official action on behalf of the agency without
otherwise protecting the authority of the full Commission to
review sub panel decisions. This seems to be a very serious
flaw.
To be plain, while we feel no need for the taxpayers to
support two new Commissioners, if the Commission is to be
expanded, we do not object to the use of sub panels so long as
the panels are established in a fair and impartial manner that
does not seek to control the outcome of a case and so long as
the prerogatives of a majority of the full Commission are
protected. Unfortunately, H.R. 740 has yet to meet these very
basic precepts.
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. H.R. 740 requires 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 ``Committee Views:
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 effect then of adding the word ``legal'' as a
modifier of ``training'' is only to limit the kind of training
that the President may consider. 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. 740 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.
Danny K. Davis.
Robert E. Andrews.
Chris Van Hollen.
Rush Holt.
Betty McCollum.
Ruben Hinojosa.
David Wu.
Major R. Owens.
Carolyn McCarthy.
Raul M. Grijalva.
Lynn Woolsey.
Ron Kind.
Dale E. Kildee.
Tim Ryan.
Donald M. Payne.
Tim Bishop.
John F. Tierney.
Dennis Kucinich.