108TH CONGRESS

2D SESSION H. R. 2728

AN ACT

To amend the Occupational Safety and Health Act

latory processes.Code, to reform Federal paperwork and reguduction Act and titles 5 and 31, United StatesAdministration; and to amend the Paperwork Recitations by the Occupational Safety and Healthprevail in litigation prompted by the issuance offees and costs to very small employers when theytration; to provide for the award of attorney’sby the Occupational Safety and Health Adminisvide for an independent review of citations issuedSafety and Health Review Commission; to proprovide for greater efficiency at the Occupationalpational Safety and Health Administration; tofollowing the issuance of a citation by the Occuregard to an employer filing of a notice of contestof 1970 to provide for adjudicative flexibility with

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. TABLE OF CONTENTS.

2 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.

3 TITLE I—OCCUPATIONAL SAFE4 TY AND HEALTH SMALL BUSI5 NESS DAY IN COURT ACT

6 SEC. 101. SHORT TITLE.

7 This title may be cited as the ‘‘Occupational Safety

8 and Health Small Business Day in Court Act of 2004’’.
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1 SEC. 102. CONTESTING CITATIONS UNDER THE OCCUPA2 TIONAL SAFETY AND HEALTH ACT.

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

4 of the Occupational Safety and Health Act of 1970 (29

5 U.S.C. 659(a)) is amended by inserting ‘‘(unless such fail6 ure results from mistake, inadvertence, surprise, or excus7 able neglect)’’ after ‘‘assessment of penalty’’.

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

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

10 of 1970 (29 U.S.C. 659(b)) is amended by inserting ‘‘(un11 less such failure results from mistake, inadvertence, sur12 prise, or excusable neglect)’’ after ‘‘assessment of pen13 alty’’.

14 TITLE II—OCCUPATIONAL SAFE15 TY AND HEALTH REVIEW

16 COMMISSION EFFICIENCY

17 ACT

18 SEC. 201. SHORT TITLE.

19 This title may be cited as the ‘‘Occupational Safety

20 and Health Review Commission Efficiency Act of 2004’’.

21 SEC. 202. OCCUPATIONAL SAFETY AND HEALTH REVIEW

22 COMMISSION.

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

24 Safety and Health Act of 1970 (29 U.S.C. 661) is amend25 ed as follows:
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1 (1) In subsection (a), by striking the word

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

3 ‘‘five’’ and by inserting the word ‘‘legal’’ before the

4 word ‘‘training’’.

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

6 words ‘‘except that’’ and inserting in lieu thereof:

7 ‘‘the President may extend the term of a member for

8 no more than 365 consecutive days to allow a con9 tinuation in service at the pleasure of the President

10 after the expiration of that member’s term until a

11 successor nominated by the President has been con12 firmed to serve. Any vacancy caused by the death,

13 resignation, or removal of a member before the expi14 ration of a term, for which he or she was appointed

15 shall be filled only for the remainder of such expired

16 term. A member of the Commission may be removed

17 by the President for inefficiency, neglect of duty, or

18 malfeasance in office.’’.

19 (3) In subsection (f), by striking ‘‘two’’ the first

20 place it appears and inserting ‘‘three’’.

21 (b) NEW POSITIONS.—Of the three vacancies for

22 membership on the Commission created by this section,

23 one shall be filled by the President for a term expiring

24 on April 27, 2006, and the other shall be filled by the

25 President for a term expiring on April 27, 2008.
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1 TITLE III—OCCUPATIONAL SAFE2 TY AND HEALTH INDE3 PENDENT REVIEW OF OSHA

4 CITATIONS ACT

5 SEC. 301. SHORT TITLE.

6 This title may be cited as the ‘‘Occupational Safety

7 and Health Independent Review of OSHA Citations Act

8 of 2004’’.

9 SEC. 302. INDEPENDENT REVIEW.

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

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

12 following at the end thereof: ‘‘The conclusions of the Com13 mission with respect to all questions of law that are sub14 ject to agency deference under governing court precedent

15 shall be given deference if reasonable.’’.

16 TITLE IV—OCCUPATIONAL SAFE17 TY AND HEALTH SMALL EM18 PLOYER ACCESS TO JUSTICE

19 ACT

20 SEC. 401. SHORT TITLE.

21 This title may be cited as the ‘‘Occupational Safety

22 and Health Small Employer Access to Justice Act of

23 2004’’.
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1 SEC. 402. AWARD OF ATTORNEY’S FEES AND COSTS.

2 The Occupational Safety and Health Act of 1970 (29

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

4 sections 32 through 34 as sections 33 through 35 and in5 serting the following new section after section 31:

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

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

8 who—

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

10 adjudication instituted under this Act, and

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

12 net worth of not more than $7,000,000 at the time

13 of the adversary adjudication was initiated,

14 shall be awarded fees and other expenses as a prevailing

15 party under section 504 of title 5, United States Code,

16 in accordance with the provisions of that section, but with17 out regard to whether the position of the Secretary was

18 substantially justified or special circumstances make an

19 award unjust. For purposes of this section the term ‘ad20 versary adjudication’ has the meaning given that term in

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

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

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

24 for judicial review of any action instituted under this

25 Act, and
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1 ‘‘(2) had not more than 100 employees and a

2 net worth of not more than $7,000,000 at the time

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

4 shall be awarded fees and other expenses as a prevailing

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

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

7 but without regard to whether the position of the United

8 States was substantially justified or special circumstances

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

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

11 determined without regard to whether the position of the

12 United States was substantially justified or special cir13 cumstances make an award unjust.

14 ‘‘(c) APPLICABILITY.—

15 ‘‘(1) COMMISSION PROCEEDINGS.—Subsection

16 (a) of this section applies to proceedings commenced

17 on or after the date of enactment of this section.

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

19 this section applies to proceedings for judicial review

20 commenced on or after the date of enactment of this

21 section.’’.
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1 TITLE V—PAPERWORK AND REG2 ULATORY IMPROVEMENTS

3 ACT

4 SEC. 501. SHORT TITLE.

5 This title may be cited as the ‘‘Paperwork and Regu6 latory Improvements Act of 2004’’.

7 SEC. 502. FINDINGS.

8 Congress finds the following:

9 (1) In 1980, in the Paperwork Reduction Act,

10 Congress established the Office of Information and

11 Regulatory Affairs (OIRA) in the Office of Manage12 ment and Budget. OIRA’s principal responsibility is

13 to reduce the paperwork burden on the public that

14 results from the collection of information by or for

15 the Federal Government. In 2002, OIRA estimated

16 that the paperwork burden imposed on the public

17 was 7.7 billion hours, at a cost of $230 billion. The

18 Internal Revenue Service accounted for 83 percent

19 of the paperwork burden.

20 (2) In 1995, Congress amended the Paperwork

21 Reduction Act and established annual government22 wide paperwork reduction goals of 10 percent for

23 each of fiscal years 1996 and 1997, and 5 percent

24 for each of fiscal years 1998 through 2001, but the

25 paperwork burden increased, rather than decreased,
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1 in each of those fiscal years and fiscal year 2002.

2 Both the Office of Management and Budget and the

3 Internal Revenue Service need to devote additional

4 attention to paperwork reduction.

5 (3) In 2002, the House Report accompanying

6 the Treasury and General Government Appropria7 tions Act, 2003 (House Report 107–575) stated,

8 ‘‘The Office of Management and Budget has re9 ported that paperwork burdens on Americans have

10 increased in each of the last six years. Since the In11 ternal Revenue Service imposes over 80 percent of

12 these paperwork burdens, the Committee believes

13 that OMB should work to identify and review pro14 posed and existing IRS paperwork.’’.

15 (4) One key to success in paperwork reduction

16 is the Office of Management and Budget’s system17 atic review of every new and revised agency paper18 work proposal. Recent statutory exemptions from

19 that office’s review responsibility, especially those

20 without any stated justification, should be removed.

21 (5) In 2000, researchers Mark Crain of George

22 Mason University and Thomas Hopkins of the Roch23 ester Institute of Technology, in their October 2001

24 publication titled ‘‘The Impact of Regulatory Costs

25 on Small Firms’’, estimated that Americans spend
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1 $843 billion annually to comply with Federal regula2 tions. Congress has a responsibility to review major

3 rules (as defined by section 804 of title 5, United

4 States Code) proposed by agencies, especially regu5 latory alternatives and the costs and benefits associ6 ated with each of them. In 2000, in the Truth in

7 Regulating Act, Congress established new responsi8 bility within the General Accounting Office to assist

9 Congress with this responsibility.

10 (6) In 1996, because of the increasing costs and

11 incompletely estimated benefits of Federal rules and

12 paperwork, Congress required the Office of Manage13 ment and Budget for the first time to submit an an14 nual report to Congress on the total costs and bene15 fits to the public of Federal rules and paperwork re16 quirements, including an assessment of the effects of

17 Federal rules on the private sector and State and

18 local governments. In 1998, Congress changed the

19 annual report’s due date to coincide with the due

20 date of the President’s budget, so that Congress and

21 the public could be given an opportunity to simulta22 neously review both the on-budget and off-budget

23 costs associated with the regulatory and paperwork

24 requirements of each Federal agency. In 2000, Con-
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1 gress made this a permanent annual reporting re2 quirement.

3 (7) The Office of Management and Budget re4 quires agencies to submit annual budget and paper5 work burden estimates in order to prepare certain

6 required reports for Congress, but it does not re7 quire agencies to submit estimates on costs and ben8 efits of agency rules and paperwork. The Office of

9 Management and Budget needs to require agencies

10 to submit such estimates on costs and benefits to

11 help prepare the annual accounting statement and

12 associated report required under section 624 of the

13 Treasury and General Government Appropriations

14 Act, 2001.

15 SEC. 503. REDUCTION OF TAX PAPERWORK.

16 Section 3504 of title 44, United States Code, is

17 amended by adding at the end the following new sub18 section:

19 ‘‘(i) In carrying out subsection (c)(3), the Director

20 shall (in consultation with the Internal Revenue Service

21 and the Office of Tax Policy of the Department of the

22 Treasury and the Office of Advocacy of the Small Busi23 ness Administration) conduct a review of the collections

24 of information conducted by the Internal Revenue Service

25 to identify actions that the Internal Revenue Service can
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1 take to reduce the information collection burden imposed

2 on small business concerns, consistent with section

3 3520(c)(1) of this chapter. The Director shall include the

4 results of the review in the annual report that the Director

5 submits under section 3514 of this chapter for fiscal year

6 2006.’’.

7 SEC. 504. REPEAL OF EXEMPTIONS FROM PAPERWORK RE8 DUCTION ACT, ETC.

9 (a) REPEALS.—The following provisions of the Farm

10 Security and Rural Investment Act of 2002 (Public Law

11 107–171) are repealed:

12 (1) Subparagraphs (A) and (C) of section

13 1601(c)(2).

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

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

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

17 (5) Section 2702(c).

18 (6) Subparagraphs (A) and (C) of section

19 6103(b)(2).

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

21 (8) Subparagraphs (A) and (C) of section

22 10105(d)(2).

23 (9) Section 10105(d)(3).
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1 (b) EFFECTIVE DATE.—The repeals of the provisions

2 listed in subsection (a) shall take effect 180 days after

3 the date of the enactment of this title.

4 SEC. 505. AMENDMENT OF TRUTH IN REGULATING ACT TO

5 MAKE PERMANENT PILOT PROJECT FOR RE6 PORT ON RULES.

7 (a) PERMANENT AUTHORITY.—The purpose of this

8 section is to make permanent the authority to request the

9 performance of regulatory analysis to enhance Congres10 sional responsibility for regulatory decisions developed

11 under the laws enacted by Congress. The Truth in Regu12 lating Act of 2000 (Public Law 106–312; 5 U.S.C. 801

13 note) is amended—

14 (1) in the heading for section 4, by striking

15 ‘‘PILOT PROJECT FOR’’,

16 (2) in section 5, by striking ‘‘$5,200,000 for

17 each of fiscal years 2000 through 2002’’ and insert18 ing ‘‘$5,000,000 for each fiscal year beginning after

19 September 30, 2004’’; and

20 (3) in section 6—

21 (A) in the heading, by striking ‘‘AND DU22 RATION OF PILOT PROJECT’’;

23 (B) in subsection (a), by striking ‘‘(a) EF24 FECTIVE DATE.—’’; and

25 (C) by striking subsections (b) and (c).
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1 (b) EFFECTIVE DATE.—The amendments made by

2 this section shall take effect 90 days after the date of the

3 enactment of this title.

4 SEC. 506. IMPROVED REGULATORY ACCOUNTING.

5 (a) REQUIREMENT FOR AGENCIES TO SUBMIT IN6 FORMATION ON REGULATIONS AND PAPERWORK TO

7 OMB.—Section 624 of the Treasury and General Govern8 ment Appropriations Act, 2001 (as enacted into law by

9 Public Law 106–554; 114 Stat. 2763A–161), is

10 amended—

11 (1) by redesignating subsections (b), (c), and

12 (d) as subsection (c), (d), and (e), respectively; and

13 (2) by inserting after subsection (a) the fol14 lowing new subsection:

15 ‘‘(b) AGENCY SUBMISSIONS TO OMB.—To carry out

16 subsection (a), the Director of the Office of Management

17 and Budget shall require each agency annually to submit

18 to the Office of Management and Budget an estimate of

19 the total annual costs and benefits of Federal rules and

20 paperwork, to the extent feasible—

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

22 ‘‘(2) for each agency program.’’.

23 (b) REGULATORY BUDGETING.—(1) Chapter 11 of

24 title 31, United States Code, is amended by adding at the

25 end the following new section:
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1 ‘‘§ 1120. Regulatory budgeting

2 ‘‘(a) The Director of the Office of Management and

3 Budget, after consultation with the head of each agency,

4 shall designate not less than three agencies (or offices

5 within an agency) to participate in a study on regulatory

6 budgeting for fiscal years 2006 and 2007. The designated

7 agencies shall include three regulatory agencies or offices

8 from among the following: the Department of Labor, the

9 Department of Transportation, the Department of Health

10 and Human Services, and the Environmental Protection

11 Agency.

12 ‘‘(b) The study shall address the preparation of regu13 latory budgets. Such budgets shall include the presen14 tation of the varying estimated levels of benefits that

15 would be associated with the different estimated levels of

16 costs with respect to the regulatory alternatives under con17 sideration by the agency (or office within the agency).

18 ‘‘(c) The Director of the Office of Management and

19 Budget shall include, in the accounting statement and as20 sociated report submitted to Congress for calendar year

21 2006 under section 624 of the Treasury and General Gov22 ernment Appropriations Act, 2001 (as enacted into law

23 by Public Law 106–554; 114 Stat. 2763A–161), a presen24 tation of the different levels of estimated regulatory bene25 fits and costs with respect to the regulatory alternatives

26 under consideration for one or more of the major regu-
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1 latory programs of each of the agencies designated under

2 subsection (a).

3 ‘‘(d) In the accounting statement and associated re4 port submitted to Congress for calendar year 2009 under

5 section 624 of the Treasury and General Government Ap6 propriations Act, 2001 (as so enacted), the Director of the

7 Office of Management and Budget, after consultation with

8 the Committees on the Budget and on Government Re9 form of the House of Representatives and the Committees

10 on the Budget and on Governmental Affairs of the Senate,

11 shall include a report on the study on regulatory budg12 eting. The report shall—

13 ‘‘(1) assess the feasibility and advisability of in14 cluding a regulatory budget as part of the annual

15 budget submitted under section 1105;

16 ‘‘(2) describe any difficulties encountered by the

17 Office of Management and Budget and the partici18 pating agencies in conducting the study; and

19 ‘‘(3) recommend, to the extent the President

20 considers necessary or expedient, proposed legisla21 tion regarding regulatory budgets.

22 ‘‘(e) The report on the study on regulatory budgeting

23 required under subsection (d) shall also be submitted di24 rectly to the Committees on the Budget and on Govern25 ment Reform of the House of Representatives and the
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1 Committees on the Budget and on Governmental Affairs

2 of the Senate.’’.

3 (2) The table of sections at the beginning of such

4 chapter is amended by adding at the end the following

5 new item:

‘‘1120. Regulatory budgeting.’’.

Passed the House of Representatives May 18, 2004.

Attest:

Clerk.