[House Report 109-50]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     109-50

======================================================================
 
OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA CITATIONS ACT 
                                OF 2005

                                _______
                                

 April 21, 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. 741]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 741) to amend the Occupational Safety 
and Health Act of 1970 to provide for judicial deference to 
conclusions of law determined by the Occupational Safety and 
Health Review Commission with respect to an order issued by the 
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 
Independent Review of OSHA Citations Act of 2005''.

SEC. 2. INDEPENDENT REVIEW.

  Section 11(a) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 660) is amended by adding at the end the following: ``The 
conclusions of the Commission with respect to all questions of law that 
are subject to agency deference under governing court precedent shall 
be given deference if reasonable.''.

                                Purpose

    H.R. 741, the ``Occupational Safety and Health Independent 
Review of OSHA Citations Act of 2005,'' is intended to restore 
the original intent of Congress under the Occupational Safety 
and Health Act of 1970 (the ``OSH Act'') with respect to the 
relationship between the Occupational Safety and Health 
Administration (``OSHA'') and the Occupational Safety and 
Health Review Commission (``OSHRC'' or the ``Commission''), the 
adjudicative agency specifically created by Congress to hear 
disputes arising under the OSH Specifically, H.R. 741 restores 
the intent of Congress that OSHRC decide cases without regard 
to the views of OSHA, and ensures that interpretation of the 
OSH Act is in accord with Congressional intent by statutorily 
requiring that OSHRC's rulings are the controlling 
interpretations of law under the OSH Act when being reviewed by 
the courts, so long as they are reasonable.

                            Committee Action


109th Congress

    H.R. 741, the ``Occupational Safety and Health Independent 
Review of OSHA Citations 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. 2730 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 7 of H.R. 1583 was 
subsequently introduced as H.R. 2730, the ``Occupational Safety 
and Health Independent Review of OSHA Citations 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. 2730, without amendment, by voice vote.
    On May 5, 2004, the Committee on Education and the 
Workforce considered H.R. 2730. An amendment by Chairman John 
Boehner, changing the short title of the bill from the 
``Occupational Safety and Health Independent Review of OSHA 
Citations Act of 2003'' to the ``Occupational Safety and Health 
Independent Review of OSHA Citations Act of 2004,'' was 
accepted by unanimous consent. The Committee ordered H.R. 2730, 
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 House of Representatives passed H.R. 
2730 without amendment by a vote of 224 yeas and 204 nays.\2\
---------------------------------------------------------------------------
    \2\ Pursuant to the rule providing for its consideration, H. Res. 
645, upon approval of the bill it was enrolled with four other bills 
(H.R. 2728, H.R. 2729, H.R. 2731, and H.R. 2432) and thus transmitted 
to the Senate.
---------------------------------------------------------------------------

                                Summary

    H.R. 741 simply governs the relations between two agencies 
under the OSH Act: OSHA and OSHRC. The OSH Act confers 
rulemaking and prosecutorial authority on OSHA, but places a 
special limitation on the exercise of that authority by 
providing for an independent review of OSHA's citations and 
assessments by OSHRC. The OSH Act makes clear that with respect 
to contested citations, OSHRC is specifically authorized to 
affirm, vacate, or modify either the citation or the proposed 
penalty.\3\ Since the OSH Act provides that all citations, 
whether contested or not, become enforceable only as final 
orders of the Commission, the Committee finds no basis for 
OSHA's position that deference should be given to its 
interpretations of law, rather than that of OSHRC. To the 
contrary, by way of H.R. 741, the Committee affirms the 
original intent of Congress--that OSHRC was to decide cases 
without regard to OSHA's views--by statutorily requiring that 
reviewing courts grant to OSHRC, not OSHA, on questions of law, 
so long as OSHRC's interpretation is reasonable.
---------------------------------------------------------------------------
    \3\ See 29 U.S.C. Sec. 659.
---------------------------------------------------------------------------

                            Committee Views

    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, Congress also designed 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 items 
under the OSH Act. The evidence of record before the Committee 
makes clear that this check is no longer functioning in the 
manner it was designed, and that legislative action is required 
to restore this necessary balance. H.R. 741 accomplishes this 
goal by ensuring that OSHRC's review will be independent and 
meaningful by codifying in statute the guarantee that reviewing 
courts extend the judicial principle of ``deference'' to 
OSHRC's, and not OSHA's, interpretations of the OSH Act and its 
regulations.

Background

    ``Deference'' is a legal term of art used by courts to 
avoid ``second-guessing'' or substituting their own judgment 
with respect to administrative decisions made by an agency 
interpreting its own statute or regulations concerning 
questions of law. When the OSH Act was enacted in 1970, courts 
generally used one of two methods to give deference to an 
administrative agency's interpretation of its own regulations. 
The first held that questions of law were for the courts to 
decide independently, though administrative interpretations 
were given great weight.\4\ The second held that agency 
interpretations were controlling, as long as they were 
reasonable and there was no compelling indication of error.\5\
---------------------------------------------------------------------------
    \4\ See, e.g., General Electric Co. v. Gilbert, 429 U.S. 125, 140-
142 (1976).
    \5\ See, e.g., Red Lion Broadcasting Co. v. Federal Communications 
Comm'n, 395 U.S. 367, 381 (1969).
---------------------------------------------------------------------------
    OSHRC initially chose to follow the first, ``independent 
interpretation'' method, according varying degrees of weight 
and deference to interpretations of law and regulations made by 
OSHA. Generally, the more that OSHA's interpretation reflected 
the original intent of a statute, or a technical view that 
resulted from OSHA's uniquely-qualified expertise, the greater 
weight OSHRC afforded OSHA in its independent review. 
Conversely, where OSHA's interpretation was not informed by a 
uniquely qualified expertise, OSHRC accorded less deference to 
OSHA's interpretations.\6\
---------------------------------------------------------------------------
    \6\ For example, OSHRC noted in its case law that many of OSHA's 
standards resulted from the incorporation of existing voluntary 
standards produced before 1970 by voluntary groups of experts based on 
industry data and consensus. In such instances, OSHRC generally found 
that inasmuch as OSHA merely was adopting previously existing 
standards, OSHA possessed no special knowledge of the original intent 
of the standards, and was therefore, in OSHRC's view, not entitled to 
deference. Instead, in such cases, OSHRC deferred to whatever 
information was most indicative of the original intent of the statute. 
See, e.g., United States Steel Corp., 5 BNA OSHRC 1289, 1295 n. 9 
(1977). In contrast, where OSHA incorporated existing natural standards 
under its authority found at section 6(a) of the OSH Act, OSHRC 
generally gave great weight to whatever evidence OSHA could produce 
that shed light on the promulgated authority's original intent. See, 
e.g., Equitable Shipyards, Inc., 13 BNA OSHRC 1177 (1987). Finally, 
OSHRC afforded great defference to OSHA in its interpretation of the 
standards OSHA itself had promulgated under its 6(a) authority. In 
these cases, since OSHA was obviously the originator of the standard, 
and thus in a position to be aware of original intent, OSHRC generally 
extended nearly dispositive weight to evidence of OSHA's intent when 
produced in the form of preambles to standards and other relevant 
indications. See, e.g., Phelps Dodge Corp., 11 BNA OSHRC 1441, 1444 
(1984).
---------------------------------------------------------------------------
    While OSHRC generally extended varying degrees of weight to 
OSHA's interpretations, it maintained its independence and 
chose not to strictly or uniformly give deference to OSHA's 
interpretations. In 1984, however, in a case called Chevron USA 
Inc. v. Natural Resources Defense Council, Inc.,\7\ the U.S. 
Supreme Court greatly extended the concept of administrative 
deference, mandating that a reviewing court give deference to 
an agency's interpretation of an ambiguous provision of law 
unless the agency's own position was unreasonable. As the 
Chevron Court explained:
---------------------------------------------------------------------------
    \7\ 467 U.S. 837 (1984).
---------------------------------------------------------------------------
    First, always, is the question whether Congress has 
directly spoken to the precise question at issue. If the intent 
of Congress is clear, that is the end of the matter; for the 
court, as well as the agency, must give effect to the 
unambiguously expressed intent of Congress. If, however, the 
court determines Congress has not directly addressed the 
precise question at issue, the court does not simply impose its 
own construction on the statute, as would be necessary in the 
absence of an administrative interpretation. Rather, if the 
statute is silent or ambiguous with respect to the specific 
issue, the question for the court is whether the agency's 
answer is based on a permissible construction of the statute.
* * *
    If Congress has explicitly left a gap for the agency to 
fill, there is an express delegation of authority to the agency 
to elucidate a specific provision of the statute by regulation. 
Such legislative regulations are given controlling weight 
unless they are arbitrary, capricious, or manifestly contrary 
to the statute. Sometimes the legislative delegation to an 
agency on a particular question is implicit. In such a case, a 
court may not substitute its own construction of a statutory 
provision for a reasonable interpretation made by the 
administrator of an agency.\8\
---------------------------------------------------------------------------
    \8\ Id. at 842-43 (citations omitted; emphasis added).
---------------------------------------------------------------------------
    In the wake of the Chevron decision, OSHA renewed its 
demand for deference to its decisions over OSHRC's, fueling the 
need for Congressional resolution.\9\
---------------------------------------------------------------------------
    \9\ The Committee would make clear that insofar as Chevron compels 
a reviewing court to give ``deference'' to the reasonable 
interpretation of a regulation by its administrative agency, no 
substantive change to the law is intended. Rather, H.R. 741 merely 
directs which agency is afforded such deference in this particular 
instance, and restores Congressional intent by making clear that 
OSHRC's, not OSHA's, interpretations of law govern.
---------------------------------------------------------------------------
    Compounding the problem, in 1991 the Supreme Court held in 
Martin v. OSHRC (CF&I Steel Corp.) that OSHA's interpretation 
of an ambiguous regulation must be upheld if the interpretation 
is merely ``reasonable''--even if the reviewing court believed 
that the interpretation of the regulation was incorrect.\10\ As 
one witness before the Workforce Protections Subcommittee 
explained, ``The [CF&I] decision awards OSHA a home run even if 
the Review Commission and a court think OSHA has only hit a 
foul ball.'' \11\ The record evidence before the Subcommittee 
details at length the wide-ranging and adverse effects of these 
decisions on the fairness of enforcement under the OSH Act: 
namely, that OSHRC is effectively required to defer to OSHA on 
questions of law.\12\
---------------------------------------------------------------------------
    \10\ See 499 U.S. 144 (1991).
    \11\ Testimony of Arthur G. Sapper, Esq., Hearing on H.R. 1583, at 
69.
    \12\ See id. at 69-70 (detailing effects of CF&I case on OSHA 
enforcement).
---------------------------------------------------------------------------
    While the judicial principle of administrative deference is 
one with which the Committee finds no general disagreement, the 
Committee believes that in this context, granting deference to 
OSHA instead of OSHRC is in error in light of the clear 
legislative history of the OSH Act.

Legislative History of OSHRC and the OSH Act

    The legislative history of OSHRC contained in the OSH Act 
makes clear that Congress intended OSHRC to provide a wholly 
independent review of OSHA's functions; indeed, such a 
requirement was critical to reaching a final compromise on the 
OSH Act that was able to pass Congress.
    As originally conceived in both Senate and House versions 
of the OSH Act, OSHA was responsible for rulemaking, 
enforcement, and adjudication of issues arising under the 
statute.\13\ Opposition grew, however, in terms of concern over 
such a concentration of power in a single entity, especially in 
light of the sweeping unprecedented authority that the 
Department of Labor (which houses OSHA) would have over 
workplaces. This distrust led the Nixon Administration to craft 
a competing bill which gave DOL only prosecutorial authority 
and proposed two independent boards to perform the rulemaking 
and adjudicative functions.\14\
---------------------------------------------------------------------------
    \13\ See Sec. 5., Rep. No. 1282, 91st Cong., 2nd Sess. 8, 15 
(1970).
    \14\ See id. at 54.
---------------------------------------------------------------------------
    In Congressional debate, the committees of jurisdiction 
focused much of their attention on the separation of functions 
under the OSH Act. Debate became so bitter as to seriously 
jeopardize the prospects for passage of the bill.\15\ As noted 
at the time by Senator Jacob Javits, a Republican from New 
York, such a concentration of power in a single entity created 
a situation where ``any finding of OSHA in its adjudicative 
function could be a repudiation of the agency's own self.'' 
\16\
---------------------------------------------------------------------------
    \15\ See id. at 55.
    \16\ See id. at 56.
---------------------------------------------------------------------------
    Ultimately, what enabled passage of the OSH Act was a 
compromise authored by Senator Javits, which provided that an 
independent review commission--OSHRC--would be established as a 
check on prosecutorial excess by OSHA. That OSHRC was intended 
to be an independent agency which would not defer to OSHA was 
made explicitly clear during debate on the bill at that time:

          Mr. Holland: Would the Commission which would be set 
        up * * * [be] controlled by the Labor Department or 
        would it be an independent commission?
          Mr. Javits: This is an autonomous, independent 
        commission which, without regard to the Secretary, can 
        find for or against him on the basis of individual 
        complaints.\17\
---------------------------------------------------------------------------
    \17\ See Congressional Record at 37607, (Nov. 17, 1970) (debate on 
the Javits Amendment to the OSH Act) (emphasis added).

    Shortly after this assurance was given, the Senate voted to 
adopt the Javits compromise.
    The evidence before the Committee makes clear that Congress 
intended that OSHRC, not OSHA, would have the final 
administrative say in interpretation of ambiguities under the 
OSH Act, and that in fact such a compromise was critical to 
ensuring final passage of the bill itself. The record further 
confirms that Congress intended to limit OSHA's prosecutorial 
power and to confer upon OSHRC the final compliment of 
adjudicative powers that are available to similar agencies. It 
is clear that Congress intended to vest OSHRC with this 
authority not only to ensure that the adjudicatory process 
would be fair to the regulated community, but also that there 
would be some reasonable check on the prosecuting agency's 
ability to interpret the law it was to apply. To the extent 
that current law and practice do not consistently reflect the 
intent of Congress in this regard, H.R. 741 codifies in statute 
that which Congress plainly intended: that OSHRC's 
interpretation of ambiguities in the OSH Act and the standards 
and regulations adopted thereunder, be given deference over 
that of the prosecuting agency, OSHA, and that OSHRC's review 
of OSHA's decisions be meaningful and independent. The 
Committee does not intend that this bill affect judicial review 
more generally. As the Supreme Court stated in CF&I Steel, ``We 
deal [here] only with the division of powers between the 
Secretary and the OSH Act.'' \18\
---------------------------------------------------------------------------
    \18\ 499 U.S. at 157.
---------------------------------------------------------------------------

Conclusion

    In H.R. 741, the Committee affirms that the statutory 
structure and legislative history of the OSH Act clearly 
indicate an intent on the part of Congress that deference be 
extended to OSHRC, not OSHA, on questions of law, so long as 
OSHRC's interpretation is reasonable. H.R. 741 ensures that the 
original intent of Congress--namely, that the decisions of OSHA 
be subject to a full and independent review by OSHRC--is 
reflected in current law by statutorily mandating that such 
deference on interpretations of questions of law is given to 
the Commission.

                      Section-by-Section: H.R. 741


Section 1. Short title

    This act may be cited as the ``Occupational Safety and 
Health Independent Review of OSHA Citations Act of 2005.''

Section 2. Independent review

    Amends Section 11(a) of the Occupational Safety and Health 
Act of 1970 to specify that OSHRC's rulings, not OSHA's, shall 
be the controlling interpretations of law under the OSH Act, so 
long as they are reasonable.

                       Explanation of Amendments

    The Committee adopted an amendment in the nature of a 
substitute described herein. The amendment was intended to 
correct a drafting error relating to the placement of the 
operative text of the bill and make conforming changes.

              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. 741 
amends the Occupational Safety and Health Act (OSH Act) to 
clarify the relation between the Occupational Safety and Health 
Administration (``OSHA'') and the Occupational Safety and 
Health Review Commission (``OSHRC'' or ``Commission'')--that 
the OSHRC decide cases ``without regard to'' the views of OSHA. 
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. 741 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. 741, the 
Occupational Safety and Health Independent Review of OSHA 
Citations 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. 741--Occupational Safety and Health Independent Review of OSHA 
        Citations Act of 2005

    H.R. 741 would amend the Occupational Safety and Health Act 
to clarify that decisions made by the Occupational Safety and 
Health Review Commission (OSHRC) with respect to questions of 
law should be given deference by appellate courts. OSHRC is an 
independent federal agency created to adjudicate contests of 
citations or penalties resulting from inspections of work 
places by the Occupational Safety and Health Agency. OSHRC 
functions as an administrative court whose decisions can be 
appealed to the judicial court system.
    CBO estimates that implementing H.R. 741 would not have any 
significant impact on the federal budget.
    H.R. 741 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact is Tom Bradley. This estimate was 
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. 741 is to amend the Occupational Safety and Health 
Act (OSH Act) to clarify the relation between the Occupational 
Safety and Health Administration (``OSHA'') and the 
Occupational Safety and Health Review Commission (``OSHRC'' or 
``Commission'')--that the OSHRC decide cases ``without regard 
to'' the views of OSHA. 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. 741 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. 741. 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 (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

      SECTION 11 OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970


                            judicial review

      Sec. 11. (a) Any person adversely affected, or aggrieved 
by an order of the Commission issued under subsection (c) of 
section 10 may obtain a review of such order in any United 
States court of appeals for the circuit in which the violation 
is alleged to have occurred or where the employer has its 
principal office, or in the Court of Appeals for the District 
of Columbia Circuit, by filing in such court within sixty days 
following the issuance of such order a written petition praying 
that the order be modified or set aside. A copy of such 
petition shall be forthwith transmitted by the clerk of the 
court to the Commission and to the other parties, and thereupon 
the Commission shall file in the court and the record in the 
proceeding as provided in section 2112 of title 28, United 
States Code. Upon such filing, the court shall have 
jurisdiction of the proceeding and of the question determined 
therein, and shall have power to grant such temporary relief or 
restraining order as it deems just and proper, and to make and 
enter upon the pleadings, testimony, and proceedings set forth 
in such record a decree affirming, modifying, or setting aside 
in whole or in part, the order of the Commission and enforcing 
the same to the extent that such order affirmed or modified. 
The commencement of proceedings under this subsection shall 
not, unless ordered by the court, operate as a stay of the 
order of the Commission. No objection that has not been urged 
before the Commission shall be considered by the court, unless 
the failure or neglect to urge such objection shall be excused 
because of extraordinary circumstances. The findings of the 
Commission with respect to questions of the fact, if supported 
by substantial evidence on the record considered as a whole, 
shall be conclusive. If any party shall apply to the court for 
leave to adduce additional evidence and shall show to the 
satisfaction of the court that such additional evidence is 
material and that such additional evidence is material and that 
there were reasonable grounds for the failure to adduce such 
evidence in the hearing before the Commission, the court may 
order such additional evidence to be taken before the 
Commission and to be made a part of the record. The Commission 
may modify its findings as to the facts, or make new finding, 
by reason of additional evidence so taken and filed, and it 
shall file such modified or new findings, which findings with 
respect to questions of fact, is supported by substantial 
evidence on the record considered as a whole, shall be 
conclusive, and its recommendations, if any, for the 
modification or setting aside of its original order. Upon the 
filing of the record, with it, the jurisdiction of the court 
shall be exclusive and its judgment and decree shall be final, 
except that the same shall be subject to review by the Supreme 
Court of the United States, as provided in section 1254 of 
title 28, United States Code. The conclusions of the Commission 
with respect to all questions of law that are subject to agency 
deference under governing court precedent shall be given 
deference if reasonable.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    The issue that H.R. 741 addresses is whether the Secretary 
of Labor or the Occupational Review Commission should receive 
deference where both proffer reasonable but conflicting 
interpretations of an ambiguous regulation. This bill grants 
deference to the Commission thereby undermining the enforcement 
functions of the Secretary of Labor, creating regulatory 
confusion by giving the Occupational Safety and Review 
Commission policy making authority in addition to its 
adjudicatory authority, and encouraging litigation challenging 
the Secretary's rules and interpretations. H.R. 741 overturns 
the unanimous decision of the Supreme Court in Martin v. OSHRC, 
499 U.S. 144 (1991).
    The Secretary is much better positioned to interpret her 
regulations than the Commission. It should be self-evident that 
the agency that issues the rule in the first instance is better 
able to interpret the intent of the rule than an agency that 
had no role in the development of the rule. But, beyond the 
obvious fact that she issued the regulation in the first 
instance, as the Supreme Court has noted, it is the Secretary 
who has broader contact, and consequently greater expertise, 
with both the regulated community and with the impact of 
regulations on the community.
    The Commission's authority is similar to that of a court 
and fully protects the regulated community from biased 
interpretations of the Secretary's authority. Citations and 
assessments by the Occupational Safety and Health Agency are 
already subject to independent review by the Commission and the 
Commission is fully authorized to set aside any unreasonable 
interpretations proffered by the Secretary. The issue raised by 
this bill is whether the Commission can substitute its own 
interpretation for the reasonable interpretation the Secretary 
offers of her own standards. Where the agency is acting within 
the limits of its authority as prescribed by Congress, not even 
the courts contend that they have, or should have, the power to 
overrule the reasonable regulatory opinions of executive 
agencies. Yet, that is the authority that H.R. 741 seeks to 
bestow on the Commission.
    Contending the Commission should have both adjudicatory and 
rulemaking authority, as the Majority does, creates unnecessary 
and unwarranted confusion by leaving two agencies responsible 
for determining policy. When two, independent agencies each 
have rulemaking authority for the same policy area; policy 
consistency and policy accountability both suffer.
    For all of these reasons, we conclude that the Supreme 
Court's view of the Act is more reasoned and more sensible than 
is the Majority's. H.R. 741 is not consistent with the OSH 
Act's legislative history and does not reflect sensible policy. 
We strongly disagree with the assertion of the legislation's 
proponents that H.R. 741 reflects the intent of the authors of 
the Occupational Safety and Health Act of 1970.
    In Martin v. OSHRC, the Court specifically considered the 
issue of whether the Secretary or the Commission should receive 
deference regarding reasonable but conflicting interpretations 
of an ambiguous regulation promulgated by the Secretary. The 
Court concluded that based upon theOccupational Safety and 
Health Act's legislative history and the Act's split enforcement 
structure, it must be inferred that the power to render authoritative 
interpretations of the Secretary's regulations is a necessary adjunct 
of the Secretary's rulemaking and enforcement powers.
    The Court noted the ``unusual regulatory structure 
established by the Act'' under which the Secretary was granted 
enforcement and rulemaking powers, while the Commission was 
afforded adjudicative powers.

          [W]e now infer from the structure and history of the 
        statute that the power to render authoritative 
        interpretations of the OSH Act regulations is a 
        `necessary adjunct' of the Secretary's powers to 
        promulgate and to enforce national health and safety 
        standards. The Secretary enjoys readily identifiable 
        structural advantages over the Commission in rendering 
        authoritative interpretations of OSH Act regulations. 
        Because the Secretary promulgates these standards, the 
        Secretary is in a better position than is the 
        Commission to reconstruct the purpose of the 
        regulations in question. Moreover, by virtue of the 
        Secretary's statutory role as enforcer, the Secretary 
        comes into contact with a much greater number of 
        regulatory problems than does the Commission, which 
        encounters only these regulatory episodes resulting in 
        contested citations. Consequently, the Secretary is 
        more likely to develop the expertise relevant to 
        assessing the effect of a particular regulatory 
        interpretation. Because historical familiarity and 
        policymaking expertise account in the first instance 
        for the presumption that Congress delegates 
        interpretive lawmaking power to the agency rather than 
        to the reviewing court, we presume here that Congress 
        intended to invest interpretative power in the 
        administrative actor in the best position to develop 
        these attributes. See Martin v. OSHRC, 499 U.S. at 152, 
        153 (citations omitted).

    Citing the Senate Committee Report (S. Rep. No. 91-1282, 
p.8), the Court noted that Congress intended to ``hold a single 
administrative actor politically `accountable for the overall 
implementation of that program' '' and that granting authority 
to the Commission ``to make law by interpreting [standards] 
would make two administrative actors ultimately responsible for 
implementing the Act's policy objectives * * *.'' See Martin v. 
OSHRC, 499 U.S. 499 at 153, 154 (emphasis in original).

          Insofar as Congress did not invest the Commission 
        with the power to make law or policy by other means, we 
        cannot infer that Congress expected the Commission to 
        use its adjudicatory power to play a policymaking role. 
        Moreover, when a traditional, unitary agency uses 
        adjudication to engage in lawmaking by regulatory 
        interpretation, it necessarily interprets regulations 
        that it has promulgated. This, too, cannot be said of 
        the Commission's power to adjudicate. See Martin v. 
        OSHRC, 449 U.S. at 154 (emphasis in original)

    The Court concluded, correctly in our view, that:

          Congress intended to delegate to the Commission the 
        type of non-policymaking adjudicatory powers typically 
        exercised by a court in the agency-review context. 
        Under this conception of adjudication, the Commission 
        is authorized to review the Secretary's interpretations 
        only for consistency with the regulatory language and 
        for reasonableness. In addition, of course, Congress 
        expressly charged the Commission with making 
        authoritative findings of fact and with applying the 
        Secretary's standards to those facts in making a 
        decision. See Martin v. OSHRC, 499 U.S. at 154, 155 
        (emphasis in original).
          * * * We harbor no doubt that Congress also intended 
        to protect regulated parties from biased 
        interpretations of the Secretary's regulations. But 
        this objective is achieved when the Commission, and 
        ultimately the court of appeals, reviews the 
        Secretary's interpretation to assure that it is 
        consistent with the regulatory language and is 
        otherwise reasonable. Giving the Commission the power 
        to substitute its reasonable interpretations for the 
        Secretary's * * * would also clearly frustrate 
        Congress' intent to make a single administrative actor 
        `accountable for the overall implementation' of the 
        Act's policy objectives * * *. See Martin v. OSHRC, 499 
        U.S. at 156 (emphasis in original).
           * * * [A]lthough we hold that a reviewing court may 
        not prefer the reasonable interpretations of the 
        Commission to the reasonable interpretations of the 
        Secretary; we emphasize that the reviewing court should 
        defer to the Secretary only if the Secretary's 
        interpretation is reasonable. See Martin v. OSHRC, 499 
        U.S. at 158.

                                   George Miller.
                                   Danny K. Davis.
                                   Robert E. Andrews.
                                   Chris Van Hollen.
                                   Rush Holt.
                                   Betty McCollum.
                                   John F. Tierney.
                                   Donald M. Payne.
                                   Major R. Owens.
                                   Carolyn McCarthy.
                                   Raul M. Grijalva.
                                   Lynn C. Woolsey.
                                   Ron Kind.
                                   Dale E. Kildee.
                                   Tim Ryan.
                                   Ruben Hinojosa.
                                   David Wu.
                                   Timothy Bishop.
                                   Dennis Kucinich.

                                  
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