I 

108TH CONGRESS 

1ST SESSION H. R. 1583

To amend the Occupational Safety and Health Act of 1970 to provide for 

adjudicative improvement, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 3, 2003

Mr. NORWOOD (for himself, Mr. BOEHNER, Mrs. BIGGERT, Mr. BALLENGER, 

Mr. HOEKSTRA, Mr. KELLER, Mr. KLINE, Mrs. BLACKBURN, and Mr. 

ISAKSON) introduced the following bill; which was referred to the Committee on Education and the Workforce 

A BILL

To amend the Occupational Safety and Health Act of 1970 

to provide for adjudicative improvement, and for other 

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Occupational Safety 

5 and Health Fairness Act of 2003’’. 

6 SEC. 2. CONTESTING CITATIONS UNDER THE OCCUPA7 TIONAL SAFETY AND HEALTH ACT. 

8 (a) CITATION.—The second sentence of section 10(a) 

9 of the Occupational Safety and Health Act of 1970 (29 
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1 U.S.C. 659(a)) is amended by inserting ‘‘(unless such fail2 ure results from mistake, inadvertence, surprise, or excus3 able neglect)’’ after ‘‘assessment of penalty’’. 

4 (b) FAILURE TO CORRECT.—The second sentence of 

5 section 10(b) of the Occupational Safety and Health Act 

6 of 1970 (29 U.S.C. 659(b)) is amended by inserting ‘‘(un7 less such failure results from mistake, inadvertence, sur8 prise, or excusable neglect)’’ after ‘‘assessment of pen9 alty’’. 

10 SEC. 3. WILLFUL VIOLATIONS. 

11 Section 17(a) of the Occupational Safety and Health 

12 Act of 1970 (29 U.S.C. 666(a)) is amended by inserting 

13 at the end, ‘‘A violation is willful only if the employer (1) 

14 knew that the alleged condition violated a standard, rule, 

15 order or regulation and, without a good faith belief in the 

16 legality in its conduct, knowingly disregarded the require17 ment of the standard, rule, order, or regulation, or (2) 

18 knew that employees were, or that it was reasonably pre19 dictable that employees would be, exposed to a hazard 

20 causing or likely to cause death or serious physical injury 

21 and recklessly disregarded the exposure of employees to 

22 that hazard.’’. 

23 SEC. 4. FAIRNESS OF PENALTY ASSESSMENT 

24 Section 17(j) of the Occupational Safety and Health 

25 Act of 1970 (29 U.S.C. 666(j)) is amended—
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1 (1) by inserting the words, ‘‘and de novo’’ after 

2 the word ‘‘due’’; and 

3 (2) striking all after the word ‘‘consideration’’ 

4 and inserting in lieu thereof: ‘‘to the evidence of the 

5 appropriateness of the penalty with respect to at 

6 least the following factors: 

7 ‘‘(1) the size and financial condition of the busi8 ness of the employer; 

9 ‘‘(2) the gravity of the violation, considering the 

10 probability of harm, the nature and extent of the 

11 harm, the number of affected employees, and other 

12 relevant factors; 

13 ‘‘(3) the good faith of the employer, including 

14 the employer’s good faith efforts to comply or abate; 

15 ‘‘(4) the history and recentness of substantially 

16 similar previous violations of the cited employer at 

17 the same nonconstruction worksite and at construc18 tion worksites within the same State; and 

19 ‘‘(5) the degree of responsibility or culpability 

20 for the violation of the employer, the employees, and/

21 or other persons.’’. 
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1 SEC. 5. OCCUPATIONAL SAFETY AND HEALTH REVIEW 

2 COMMISSION. 

3 (a) AMENDMENTS.—Section 12 of the Occupational 

4 Safety and Health Act of 1970 (29 U.S.C. 661) is amend5 ed as follows: 

6 (1) In subsection (a), by striking the word 

7 ‘‘three’’ and inserting in lieu thereof, the word 

8 ‘‘five;’’ and inserting before the word ‘‘training’’ the 

9 word ‘‘legal’’. 

10 (2) In subsection (b) by striking all after the 

11 words ‘‘except that’’ and inserting in lieu thereof, 

12 ‘‘the President may extend the term of a member to 

13 allow a continuation in service at the pleasure of the 

14 President after the expiration of that member’s term 

15 until a successor nominated by the President has 

16 been confirmed to serve. Any vacancy caused by the 

17 death, resignation, or removal of a member before 

18 the expiration of a term, for which he or she was ap19 pointed shall be filled only for the remainder of such 

20 expired term. A member of the Commission may be 

21 removed by the President for inefficiency, neglect of 

22 duty, or malfeasance in office. 

23 (3) Subsection (f) is amended to read as fol24 lows: 

25 ‘‘(f) The Chairman of the Commission is authorized 

26 to delegate to any panel of three or more members any 
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1 or all of the powers of the Commission. For the purpose 

2 of carrying out its functions under this chapter, 3 mem3 bers of the Commission shall constitute a quorum, except 

4 that 2 members shall constitute a quorum for any sub5 panel designated by the Chairman under this subsection.’’. 

6 (b) NEW POSITIONS.—Of the two vacancies for mem7 bership on the Commission created by this section, one 

8 shall be filled by the President for a term expiring on April 

9 27, 2006, and the other shall be filled by the President 

10 for a term expiring on April 27, 2008. 

11 SEC. 6. AWARD OF ATTORNEY’S FEES AND COSTS. 

12 The Occupational Safety and Health Act of 1970 (29 

13 U.S.C. 651 and following) is amended by redesignating 

14 section 32 through 34 as 33 through 35 and inserting the 

15 following new section after section 31: 

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

17 ‘‘(a) ADMINISTRATIVE PROCEEDINGS.—An employer 

18 who—

19 ‘‘(1) is the prevailing party in any adversary 

20 adjudication instituted under this Act, and 

21 ‘‘(2) had not more than 100 employees and a 

22 net worth of not more than $1,500,000 at the time 

23 of the adversary adjudication was initiated, 

24 shall be awarded fees and other expenses as a prevailing 

25 party under section 504 of title 5, United States Code, 
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1 in accordance with the provisions of that section, but with2 out regard to whether the position of the Secretary was 

3 substantially justified or special circumstances make an 

4 award unjust. For purposes of this section the term ‘ad5 versary adjudication’ has the meaning given that term in 

6 section 504(b)(1)(C) of title 5, United States Code. 

7 ‘‘(b) PROCEEDINGS.— An employer who—

8 ‘‘(1) is the prevailing party in any proceeding 

9 for judicial review of any action instituted under this 

10 Act, and 

11 ‘‘(2) had not more than 100 employees and a 

12 net worth of not more than $1,500,000 at the time 

13 the action addressed under subsection (1) was filed, 

14 shall be awarded fees and other expenses as a prevailing 

15 party under section 2412(d) of title 28, United States 

16 Code, in accordance with the provisions of that section, 

17 but without regard to whether the position of the United 

18 States was substantially justified or special circumstances 

19 make an award unjust. Any appeal of a determination of 

20 fees pursuant to subsection (a) of this subsection shall be 

21 determined without regard to whether the position of the 

22 United States was substantially justified or special cir23 cumstances make an award unjust. 

24 ‘‘(c) APPLICABILITY.—
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1 ‘‘(1) COMMISSION PROCEEDINGS.—Subsection 

2 (a) of this section applies to proceedings commenced 

3 on or after the date of enactment of this Act. 

4 ‘‘(2) COURT PROCEEDINGS.—Subsection (b) of 

5 this section applies to proceedings for judicial review 

6 commenced on or after the date of enactment of this 

7 Act.’’. 

8 SEC. 7. INDEPENDENT REVIEW. 

9 Section 11(a) of the Occupational Safety and Health 

10 Act of 1970 (29 U.S.C. 660) is amended by adding the 

11 following at the end thereof: ‘‘The conclusions of the Com12 mission with respect to all questions of law shall be given 

13 deference if reasonable.’’.

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