39–006 

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 

2 

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. 

3 

1See 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’’). 2Pursuant 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. 

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. 

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

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. 

4 

3See Occupational Safety and Health Review Commission, Fiscal Year 2003 Performance Report to Congress, February 2004. 4See 29 U.S.C. § 660(a). 

5See 29 U.S.C. §661(a). 

6See 29 U.S.C. §661(b). 

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

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

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 

5 

7See 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. 8See Testimony of Arthur G. Sapper, Esq., Hearing on H.R. 1583, at 65–67. 

9 Id. at 65. 

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

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

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 nonfunctional. 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

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). 

6 


Insert graphic folio 7 here HR47.001
7 

10See id. at 67. 11Subsection 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. 12OSHRC 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. 

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

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. 

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 fivemember 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 interestgroup 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 SenVerDate Aug 04 2004 05:15 Apr 19, 2005 Jkt 039006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR047.XXX HR047
8 

13To 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. 14See 29 U.S.C. §661(a). 15See id. 

ate, 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

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. 

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. 

9 

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. 

10 


Insert graphic folio 11 here HR47.002
11 

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 

12 

By fiscal year, in millions of dollars— 

2005 2006 2007 2008 2009 2010 

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. 

13 

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 øthree¿ 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 

øexcept 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, 

øtwo¿ 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. 

* * * * * * * 

(14) 

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 

15 

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. 

RUBE ́ N HINOJOSA. 

DAVID WU. 

MAJOR R. OWENS. 

CAROLYN MCCARTHY. 

RAU ́ L M. GRIJALVA. 

LYNN WOOLSEY. 

RON KIND. 

DALE E. KILDEE. 

TIM RYAN. 

DONALD M. PAYNE. 

TIM BISHOP. 

JOHN F. TIERNEY. 

16 

DENNIS KUCINICH. 

Æ