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H.R. 2728 (108th): Occupational Safety and Health Small Business Day in Court Act of 2004

The text of the bill below is as of May 20, 2004 (Placed on Calendar in the Senate).


HR 2728 PCS

Calendar No. 535

108th CONGRESS

2d Session

H. R. 2728

IN THE SENATE OF THE UNITED STATES

May 19, 2004

Received and read the first time

May 20, 2004

Read the second time and placed on the calendar


AN ACT

To amend the Occupational Safety and Health Act of 1970 to provide for adjudicative flexibility with regard to an employer filing of a notice of contest following the issuance of a citation by the Occupational Safety and Health Administration; to provide for greater efficiency at the Occupational Safety and Health Review Commission; to provide for an independent review of citations issued by the Occupational Safety and Health Administration; to provide for the award of attorney’s fees and costs to very small employers when they prevail in litigation prompted by the issuance of citations by the Occupational Safety and Health Administration; and to amend the Paperwork Reduction Act and titles 5 and 31, United States Code, to reform Federal paperwork and regulatory processes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

      Sec. 1. Table of contents.

TITLE I--OCCUPATIONAL SAFETY AND HEALTH SMALL BUSINESS DAY IN COURT ACT

      Sec. 101. Short title.

      Sec. 102. Contesting citations under the Occupational Safety and Health Act.

TITLE II--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY ACT

      Sec. 201. Short title.

      Sec. 202. Occupational Safety and Health Review Commission.

TITLE III--OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA CITATIONS ACT

      Sec. 301. Short title.

      Sec. 302. Independent review.

TITLE IV--OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO JUSTICE ACT

      Sec. 401. Short title.

      Sec. 402. Award of attorney’s fees and costs.

TITLE V--PAPERWORK AND REGULATORY IMPROVEMENTS ACT

      Sec. 501. Short title.

      Sec. 502. Findings.

      Sec. 503. Reduction of tax paperwork.

      Sec. 504. Repeal of exemptions from Paperwork Reduction Act, etc.

      Sec. 505. Amendment of Truth in Regulating Act to make permanent pilot project for report on rules.

      Sec. 506. Improved regulatory accounting.

TITLE I--OCCUPATIONAL SAFETY AND HEALTH SMALL BUSINESS DAY IN COURT ACT

SEC. 101. SHORT TITLE.

    This title may be cited as the ‘Occupational Safety and Health Small Business Day in Court Act of 2004’.

SEC. 102. CONTESTING CITATIONS UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT.

    (a) CITATION- The second sentence of section 10(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659(a)) is amended by inserting ‘(unless such failure results from mistake, inadvertence, surprise, or excusable neglect)’ after ‘assessment of penalty’.

    (b) FAILURE TO CORRECT- The second sentence of section 10(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659(b)) is amended by inserting ‘(unless such failure results from mistake, inadvertence, surprise, or excusable neglect)’ after ‘assessment of penalty’.

TITLE II--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY ACT

SEC. 201. SHORT TITLE.

    This title may be cited as the ‘Occupational Safety and Health Review Commission Efficiency Act of 2004’.

SEC. 202. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

    (a) Amendments- Section 12 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 661) is amended as follows:

      (1) In subsection (a), by striking the word ‘three’ and inserting in lieu thereof, the word ‘five’ and by inserting the word ‘legal’ before the word ‘training’.

      (2) In subsection (b) by striking all after the words ‘except that’ and inserting in lieu thereof: ‘the President may extend the term of a member for no more than 365 consecutive days to allow a continuation in service at the pleasure of the President after the expiration of that member’s term until a successor nominated by the President has been confirmed to serve. Any vacancy caused by the death, resignation, or removal of a member before the expiration of a term, for which he or she was appointed shall be filled only for the remainder of such expired term. A member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.’.

      (3) In subsection (f), by striking ‘two’ the first place it appears and inserting ‘three’.

    (b) New Positions- Of the three vacancies for membership on the Commission created by this section, one shall be filled by the President for a term expiring on April 27, 2006, and the other shall be filled by the President for a term expiring on April 27, 2008.

TITLE III--OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA CITATIONS ACT

SEC. 301. SHORT TITLE.

    This title may be cited as the ‘Occupational Safety and Health Independent Review of OSHA Citations Act of 2004’.

SEC. 302. INDEPENDENT REVIEW.

    Section 11(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 660) is amended by adding the following at the end thereof: ‘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.’.

TITLE IV--OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO JUSTICE ACT

SEC. 401. SHORT TITLE.

    This title may be cited as the ‘Occupational Safety and Health Small Employer Access to Justice Act of 2004’.

SEC. 402. AWARD OF ATTORNEY’S FEES AND COSTS.

    The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 and following) is amended by redesignating sections 32 through 34 as sections 33 through 35 and inserting the following new section after section 31:

‘SEC. 32 AWARD OF ATTORNEYS’ FEES AND COSTS.

    ‘(a) Administrative Proceedings- An employer who--

      ‘(1) is the prevailing party in any adversary adjudication instituted under this Act, and

      ‘(2) had not more than 100 employees and a net worth of not more than $7,000,000 at the time of the adversary adjudication was initiated,

    shall be awarded fees and other expenses as a prevailing party under section 504 of title 5, United States Code, in accordance with the provisions of that section, but without regard to whether the position of the Secretary was substantially justified or special circumstances make an award unjust. For purposes of this section the term ‘adversary adjudication’ has the meaning given that term in section 504(b)(1)(C) of title 5, United States Code.

    ‘(b) Proceedings- An employer who--

      ‘(1) is the prevailing party in any proceeding for judicial review of any action instituted under this Act, and

      ‘(2) had not more than 100 employees and a net worth of not more than $7,000,000 at the time the action addressed under subsection (1) was filed,

    shall be awarded fees and other expenses as a prevailing party under section 2412(d) of title 28, United States Code, in accordance with the provisions of that section, but without regard to whether the position of the United States was substantially justified or special circumstances make an award unjust. Any appeal of a determination of fees pursuant to subsection (a) of this subsection shall be determined without regard to whether the position of the United States was substantially justified or special circumstances make an award unjust.

    ‘(c) Applicability-

      ‘(1) Commission proceedings- Subsection (a) of this section applies to proceedings commenced on or after the date of enactment of this section.

      ‘(2) Court proceedings- Subsection (b) of this section applies to proceedings for judicial review commenced on or after the date of enactment of this section.’.

TITLE V--PAPERWORK AND REGULATORY IMPROVEMENTS ACT

SEC. 501. SHORT TITLE.

    This title may be cited as the ‘Paperwork and Regulatory Improvements Act of 2004’.

SEC. 502. FINDINGS.

    Congress finds the following:

      (1) In 1980, in the Paperwork Reduction Act, Congress established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget. OIRA’s principal responsibility is to reduce the paperwork burden on the public that results from the collection of information by or for the Federal Government. In 2002, OIRA estimated that the paperwork burden imposed on the public was 7.7 billion hours, at a cost of $230 billion. The Internal Revenue Service accounted for 83 percent of the paperwork burden.

      (2) In 1995, Congress amended the Paperwork Reduction Act and established annual governmentwide paperwork reduction goals of 10 percent for each of fiscal years 1996 and 1997, and 5 percent for each of fiscal years 1998 through 2001, but the paperwork burden increased, rather than decreased, in each of those fiscal years and fiscal year 2002. Both the Office of Management and Budget and the Internal Revenue Service need to devote additional attention to paperwork reduction.

      (3) In 2002, the House Report accompanying the Treasury and General Government Appropriations Act, 2003 (House Report 107-575) stated, ‘The Office of Management and Budget has reported that paperwork burdens on Americans have increased in each of the last six years. Since the Internal Revenue Service imposes over 80 percent of these paperwork burdens, the Committee believes that OMB should work to identify and review proposed and existing IRS paperwork.’.

      (4) One key to success in paperwork reduction is the Office of Management and Budget’s systematic review of every new and revised agency paperwork proposal. Recent statutory exemptions from that office’s review responsibility, especially those without any stated justification, should be removed.

      (5) In 2000, researchers Mark Crain of George Mason University and Thomas Hopkins of the Rochester Institute of Technology, in their October 2001 publication titled ‘The Impact of Regulatory Costs on Small Firms’, estimated that Americans spend $843 billion annually to comply with Federal regulations. Congress has a responsibility to review major rules (as defined by section 804 of title 5, United States Code) proposed by agencies, especially regulatory alternatives and the costs and benefits associated with each of them. In 2000, in the Truth in Regulating Act, Congress established new responsibility within the General Accounting Office to assist Congress with this responsibility.

      (6) In 1996, because of the increasing costs and incompletely estimated benefits of Federal rules and paperwork, Congress required the Office of Management and Budget for the first time to submit an annual report to Congress on the total costs and benefits to the public of Federal rules and paperwork requirements, including an assessment of the effects of Federal rules on the private sector and State and local governments. In 1998, Congress changed the annual report’s due date to coincide with the due date of the President’s budget, so that Congress and the public could be given an opportunity to simultaneously review both the on-budget and off-budget costs associated with the regulatory and paperwork requirements of each Federal agency. In 2000, Congress made this a permanent annual reporting requirement.

      (7) The Office of Management and Budget requires agencies to submit annual budget and paperwork burden estimates in order to prepare certain required reports for Congress, but it does not require agencies to submit estimates on costs and benefits of agency rules and paperwork. The Office of Management and Budget needs to require agencies to submit such estimates on costs and benefits to help prepare the annual accounting statement and associated report required under section 624 of the Treasury and General Government Appropriations Act, 2001.

SEC. 503. REDUCTION OF TAX PAPERWORK.

    Section 3504 of title 44, United States Code, is amended by adding at the end the following new subsection:

    ‘(i) In carrying out subsection (c)(3), the Director shall (in consultation with the Internal Revenue Service and the Office of Tax Policy of the Department of the Treasury and the Office of Advocacy of the Small Business Administration) conduct a review of the collections of information conducted by the Internal Revenue Service to identify actions that the Internal Revenue Service can take to reduce the information collection burden imposed on small business concerns, consistent with section 3520(c)(1) of this chapter. The Director shall include the results of the review in the annual report that the Director submits under section 3514 of this chapter for fiscal year 2006.’.

SEC. 504. REPEAL OF EXEMPTIONS FROM PAPERWORK REDUCTION ACT, ETC.

    (a) Repeals- The following provisions of the Farm Security and Rural Investment Act of 2002 (Public Law 107-171) are repealed:

      (1) Subparagraphs (A) and (C) of section 1601(c)(2).

      (2) Section 1601(c)(3).

      (3) Section 2702(b)(1)(A).

      (4) Section 2702(b)(2)(A).

      (5) Section 2702(c).

      (6) Subparagraphs (A) and (C) of section 6103(b)(2).

      (7) Section 6103(b)(3).

      (8) Subparagraphs (A) and (C) of section 10105(d)(2).

      (9) Section 10105(d)(3).

    (b) EFFECTIVE DATE- The repeals of the provisions listed in subsection (a) shall take effect 180 days after the date of the enactment of this title.

SEC. 505. AMENDMENT OF TRUTH IN REGULATING ACT TO MAKE PERMANENT PILOT PROJECT FOR REPORT ON RULES.

    (a) PERMANENT AUTHORITY- The purpose of this section is to make permanent the authority to request the performance of regulatory analysis to enhance Congressional responsibility for regulatory decisions developed under the laws enacted by Congress. The Truth in Regulating Act of 2000 (Public Law 106-312; 5 U.S.C. 801 note) is amended--

      (1) in the heading for section 4, by striking ‘PILOT PROJECT FOR’,

      (2) in section 5, by striking ‘$5,200,000 for each of fiscal years 2000 through 2002’ and inserting ‘$5,000,000 for each fiscal year beginning after September 30, 2004’; and

      (3) in section 6--

        (A) in the heading, by striking ‘AND DURATION OF PILOT PROJECT’;

        (B) in subsection (a), by striking ‘(a) EFFECTIVE DATE- ’; and

        (C) by striking subsections (b) and (c).

    (b) EFFECTIVE DATE- The amendments made by this section shall take effect 90 days after the date of the enactment of this title.

SEC. 506. IMPROVED REGULATORY ACCOUNTING.

    (a) REQUIREMENT FOR AGENCIES TO SUBMIT INFORMATION ON REGULATIONS AND PAPERWORK TO OMB- Section 624 of the Treasury and General Government Appropriations Act, 2001 (as enacted into law by Public Law 106-554; 114 Stat. 2763A-161), is amended--

      (1) by redesignating subsections (b), (c), and (d) as subsection (c), (d), and (e), respectively; and

      (2) by inserting after subsection (a) the following new subsection:

    ‘(b) AGENCY SUBMISSIONS TO OMB- To carry out subsection (a), the Director of the Office of Management and Budget shall require each agency annually to submit to the Office of Management and Budget an estimate of the total annual costs and benefits of Federal rules and paperwork, to the extent feasible--

      ‘(1) for the agency in the aggregate; and

      ‘(2) for each agency program.’.

    (b) REGULATORY BUDGETING- (1) Chapter 11 of title 31, United States Code, is amended by adding at the end the following new section:

‘Sec. 1120. Regulatory budgeting

    ‘(a) The Director of the Office of Management and Budget, after consultation with the head of each agency, shall designate not less than three agencies (or offices within an agency) to participate in a study on regulatory budgeting for fiscal years 2006 and 2007. The designated agencies shall include three regulatory agencies or offices from among the following: the Department of Labor, the Department of Transportation, the Department of Health and Human Services, and the Environmental Protection Agency.

    ‘(b) The study shall address the preparation of regulatory budgets. Such budgets shall include the presentation of the varying estimated levels of benefits that would be associated with the different estimated levels of costs with respect to the regulatory alternatives under consideration by the agency (or office within the agency).

    ‘(c) The Director of the Office of Management and Budget shall include, in the accounting statement and associated report submitted to Congress for calendar year 2006 under section 624 of the Treasury and General Government Appropriations Act, 2001 (as enacted into law by Public Law 106-554; 114 Stat. 2763A-161), a presentation of the different levels of estimated regulatory benefits and costs with respect to the regulatory alternatives under consideration for one or more of the major regulatory programs of each of the agencies designated under subsection (a).

    ‘(d) In the accounting statement and associated report submitted to Congress for calendar year 2009 under section 624 of the Treasury and General Government Appropriations Act, 2001 (as so enacted), the Director of the Office of Management and Budget, after consultation with the Committees on the Budget and on Government Reform of the House of Representatives and the Committees on the Budget and on Governmental Affairs of the Senate, shall include a report on the study on regulatory budgeting. The report shall--

      ‘(1) assess the feasibility and advisability of including a regulatory budget as part of the annual budget submitted under section 1105;

      ‘(2) describe any difficulties encountered by the Office of Management and Budget and the participating agencies in conducting the study; and

      ‘(3) recommend, to the extent the President considers necessary or expedient, proposed legislation regarding regulatory budgets.

    ‘(e) The report on the study on regulatory budgeting required under subsection (d) shall also be submitted directly to the Committees on the Budget and on Government Reform of the House of Representatives and the Committees on the Budget and on Governmental Affairs of the Senate.’.

    (2) The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

      ‘1120. Regulatory budgeting.’.

Passed the House of Representatives May 18, 2004.

Attest:

JEFF TRANDAHL,

Clerk.

Calendar No. 535

108th CONGRESS

2d Session

H. R. 2728

AN ACT

To amend the Occupational Safety and Health Act of 1970 to provide for adjudicative flexibility with regard to an employer filing of a notice of contest following the issuance of a citation by the Occupational Safety and Health Administration; to provide for greater efficiency at the Occupational Safety and Health Review Commission; to provide for an independent review of citations issued by the Occupational Safety and Health Administration; to provide for the award of attorney’s fees and costs to very small employers when they prevail in litigation prompted by the issuance of citations by the Occupational Safety and Health Administration; and to amend the Paperwork Reduction Act and titles 5 and 31, United States Code, to reform Federal paperwork and regulatory processes.


May 20, 2004

Read the second time and placed on the calendar