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[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2728 Engrossed in House (EH)]

  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.
  
  
  
  
  
  
  
  
  
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.

    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:

                                                                 Clerk.
```