[House Report 109-47]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     109-47

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



 
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.
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                                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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \4\ 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.\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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \8\ See Testimony of Arthur G. Sapper, Esq., Hearing on H.R. 1583, 
at 65-67.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \10\ 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. 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \14\ See 29 U.S.C. Sec. 661(a).
    \15\ 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. 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).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                           -----------------------------------------------------
                                                              2005     2006     2007     2008     2009     2010
----------------------------------------------------------------------------------------------------------------
                                        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
----------------------------------------------------------------------------------------------------------------
\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.

                                  
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