II

109TH CONGRESS 

1ST SESSION S. 2066 

To amend the Occupational Safety and Health Act of 1970 to further improve 

the safety and health of working environments, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 18, 2005 

Mr. ENZI (for himself, Mr. ISAKSON, Mr. CRAIG, Mr. BURR, Mr. ROBERTS, 

Mr. SESSIONS, Mr. WARNER, Mr. GREGG, and Mr. DEMINT) introduced 

the following bill; which was read twice and referred to the Committee 

on Health, Education, Labor, and Pensions 

A BILL 

To amend the Occupational Safety and Health Act of 1970 

to further improve the safety and health of working 

environments, 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; REFERENCES. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Occupational Safety Fairness Act’’. 

6 (b) REFERENCE.—Whenever in this Act an amend7 ment or repeal is expressed in terms of an amendment 

8 to, or repeal of, a section or other provision, the reference 

9 shall be considered to be made to a section or other provi-
2 

•S 2066 IS 

1 sion of the Occupational Safety and Health Act of 1970 

2 (29 U.S.C. 651 et seq.). 

3 SEC. 2. WORKSITE-SPECIFIC COMPLIANCE METHODS. 

4 Section 9 of the Act (29 U.S.C. 658) is amended by 

5 adding at the end the following: 

6 ‘‘(d) A citation issued under subsection (a) to an em7 ployer who violates section 5, any standard, rule, or order 

8 promulgated pursuant to section 6, or any regulation pro9 mulgated under this Act shall be vacated if such employer 

10 demonstrates that the employees of such employer were 

11 protected by alternative methods that are substantially 

12 equivalent or more protective of the safety and health of 

13 the employees than the methods required by such stand14 ard, rule, order, or regulation in the factual circumstances 

15 underlying the citation. 

16 ‘‘(e) Subsection (d) shall not be construed to elimi17 nate or modify other defenses that may exist to any cita18 tion.’’. 

19 SEC. 3. DISCRETIONARY COMPLIANCE ASSISTANCE. 

20 Subsection (a) of section 9 of the Act (29 U.S.C. 

21 658(a)) is amended— 

22 (1) by striking the last sentence; 

23 (2) by striking ‘‘If, upon’’ and inserting ‘‘(1) If, 

24 upon’’; and 

25 (3) by adding at the end the following: 
3 

•S 2066 IS 

1 ‘‘(2) Nothing in this Act shall be construed as prohib2 iting the Secretary or the authorized representative of the 

3 Secretary from providing technical or compliance assist4 ance to an employer in correcting a violation discovered 

5 during an inspection or investigation under this Act with6 out issuing a citation, as prescribed in this section. 

7 ‘‘(3) The Secretary or the authorized representative 

8 of the Secretary— 

9 ‘‘(A) may issue a warning in lieu of a citation 

10 with respect to a violation that has no significant re11 lationship to employee safety or health; and 

12 ‘‘(B) may issue a warning in lieu of a citation 

13 in cases in which an employer in good faith acts 

14 promptly to abate a violation if the violation is not 

15 a willful or repeated violation.’’. 

16 SEC. 4. EXPANDED INSPECTION METHODS. 

17 (a) PURPOSE.—It is the purpose of this section to 

18 empower the Secretary of Labor to achieve increased em19 ployer compliance by using, at the Secretary’s discretion, 

20 more efficient and effective means for conducting inspec21 tions. 

22 (b) GENERAL.—Section 8(f) of the Act (29 U.S.C. 

23 657(f) is amended— 

24 (1) by adding at the end the following: 
4 

•S 2066 IS 

1 ‘‘(3) The Secretary or an authorized representative 

2 of the Secretary may, as a method of investigating an al3 leged violation or danger under this subsection, attempt, 

4 if feasible, to contact an employer by telephone, facsimile, 

5 or other appropriate methods to determine whether— 

6 ‘‘(A) the employer has taken corrective actions 

7 with respect to the alleged violation or danger; or 

8 ‘‘(B) there are reasonable grounds to believe 

9 that a hazard exists. 

10 ‘‘(4) The Secretary is not required to conduct an in11 spection under this subsection if the Secretary believes 

12 that a request for an inspection was made for reasons 

13 other than the safety and health of the employees of an 

14 employer or that the employees of an employer are not 

15 at risk.’’. 

16 SEC. 5. OCCUPATIONAL SAFETY AND HEALTH REVIEW 

17 COMMISSION. 

18 (a) INCREASE IN NUMBER OF MEMBERS AND RE19 QUIREMENT FOR MEMBERSHIP.—Section 12 of the Act 

20 (29 U.S.C. 661) is amended— 

21 (1) in the second sentence of subsection (a)— 

22 (A) by striking ‘‘three members’’ and in23 serting ‘‘five members’’; and 

24 (B) by inserting ‘‘legal’’ before ‘‘training’’; 
5 

•S 2066 IS 

1 (2) in the first sentence of subsection (b), by 

2 striking ‘‘except that’’ and all that follows through 

3 the period and inserting the following: ‘‘except that 

4 the President may extend the term of a member for 

5 no more than 365 consecutive days to allow a con6 tinuation in service at the pleasure of the President 

7 after the expiration of the term of that member until 

8 a successor nominated by the President has been 

9 confirmed to serve. Any vacancy caused by the 

10 death, resignation, or removal of a member before 

11 the expiration of a term for which a member was ap12 pointed shall be filled only for the remainder of such 

13 term.’’; and 

14 (3) by striking subsection (f), and inserting the 

15 following: 

16 ‘‘(f) For purposes of carrying out its functions under 

17 this Act, two members of the Commission shall constitute 

18 a quorum and official action can be taken only on the af19 firmative vote of at least a majority of the members par20 ticipating but in no case fewer than two.’’. 

21 (b) NEW POSITIONS.—Of the two vacancies for mem22 bership on the Occupational Safety and Health Review 

23 Commission created by subsection (a)(1)(A), one shall be 

24 appointed by the President for a term expiring on April 
6 

•S 2066 IS 

1 27, 2009, and the other shall be appointed by the Presi2 dent for a term expiring on April 27, 2011. 

3 (c) EFFECTIVE DATE FOR LEGAL TRAINING RE4 QUIREMENT.—The amendment made by subsection 

5 (a)(1)(B), requiring a member of the Commission to be 

6 qualified by reason of a background in legal training, shall 

7 apply beginning with the two vacancies referred to in sub8 section (b) and all subsequent appointments to the Com9 mission. 

10 SEC. 6. AWARD OF ATTORNEYS’ FEES AND COSTS. 

11 The Act (29 U.S.C. 651 et seq.) is amended by redes12 ignating sections 32, 33, and 34 as sections 33, 34, and 

13 35, respectively, and by inserting after section 31 the fol14 lowing new section: 

15 ‘‘AWARD OF ATTORNEYS’ FEES AND COSTS

16 ‘‘SEC. 32. 

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 $7,000,000 at the time 

23 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, 

26 in accordance with the provisions of that section, but with-
7 

•S 2066 IS 

1 out regard to whether the position of the Secretary was 

2 substantially justified or special circumstances make an 

3 award unjust. For purposes of this section the term ‘ad4 versary adjudication’ has the meaning given that term in 

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

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

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

8 for judicial review of any action instituted under this 

9 Act, and 

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

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

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

13 shall be awarded fees and other expenses as a prevailing 

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

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

16 but without regard to whether the position of the United 

17 States was substantially justified or special circumstances 

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

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

20 determined without regard to whether the position of the 

21 United States was substantially justified or special cir22 cumstances make an award unjust. 

23 ‘‘(c) APPLICABILITY.— 
8 

•S 2066 IS 

1 ‘‘(1) COMMISSION PROCEEDINGS.—Subsection 

2 (a) shall apply to proceedings commenced on or after 

3 the date of enactment of this section. 

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

5 shall apply to proceedings for judicial review com6 menced on or after the date of enactment of this 

7 section.’’. 

8 SEC. 7. JUDICIAL DEFERENCE. 

9 Section 11(a) of the Act (29 U.S.C. 660(a)) is 

10 amended in the sixth sentence by inserting before the pe11 riod the following: ‘‘, and the conclusions of the Commis12 sion with respect to questions of law that are subject to 

13 agency deference under governing court precedent shall be 

14 given deference if reasonable’’. 

15 SEC. 8. CONTESTING CITATIONS UNDER THE OCCUPA16 TIONAL SAFETY AND HEALTH ACT OF 1970. 

17 (a) IN GENERAL.—Section 10 of the Act (29 U.S.C. 

18 659) is amended— 

19 (1) in the second sentence of subsection (a), by 

20 inserting after ‘‘assessment of penalty’’ the fol21 lowing: ‘‘(unless such failure results from mistake, 

22 inadvertence, surprise, or excusable neglect)’’; and 

23 (2) in the second sentence of subsection (b), by 

24 inserting after ‘‘assessment of penalty’’ the fol-
9 

•S 2066 IS 

1 lowing: ‘‘(unless such failure results from mistake, 

2 inadvertence, surprise, or excusable neglect)’’. 

3 (b) EFFECTIVE DATE.—The amendments made by 

4 this section shall apply to a citation or proposed assess5 ment of penalty issued by the Occupational Safety and 

6 Health Administration that is issued on or after the date 

7 of the enactment of this Act. 

8 SEC. 9. RIGHT TO CORRECT VIOLATIVE CONDITION. 

9 Section 9 of the Act (29 U.S.C. 658), as amended 

10 by section 2, is amended by adding at the end the fol11 lowing: 

12 ‘‘(f) The Commission may not assess a penalty under 

13 section 17(c) for a non-serious violation that is not re14 peated or willful if the employer corrects the violative con15 dition and provides the Secretary an abatement certifi16 cation within 72 hours.’’. 

17 SEC. 10. WRITTEN STATEMENT TO EMPLOYER FOLLOWING 

18 INSPECTION. 

19 Section 8 of the Act (29 U.S.C. 657) is amended by 

20 adding at the end the following: 

21 ‘‘(i) At the closing conference after the completion of 

22 an inspection, the inspector shall— 

23 ‘‘(1) inform the employer or a representative of 

24 the employer of the right of such employer to re-
10 

•S 2066 IS 

1 quest a written statement described in paragraph 

2 (2); and 

3 ‘‘(2) provide to the employer or a representative 

4 of the employer, upon the request of such employer 

5 or representative, with a written statement that 

6 clearly and concisely provides the following informa7 tion: 

8 ‘‘(A) The results of the inspection, includ9 ing each alleged hazard, if any, and each cita10 tion that will be issued, if any. 

11 ‘‘(B) The right of the employer to contest 

12 a citation, a penalty assessment, an amended 

13 citation, and an amended penalty assessment. 

14 ‘‘(C) An explanation of the procedure to 

15 follow in order to contest a citation and a pen16 alty assessment, including when and where to 

17 contest a citation and the required contents of 

18 the notice of intent to contest. 

19 ‘‘(D) The Commission’s responsibility to 

20 affirm, modify, or vacate the citation and pro21 posed penalty, if any. 

22 ‘‘(E) The informal review process. 

23 ‘‘(F) The procedures before the Occupa24 tional Safety and Health Review Commission. 
11 

•S 2066 IS 

1 ‘‘(G) The right of the employer to seek ju2 dicial review. 

3 ‘‘(j) No monetary penalty may be assessed with re4 spect to any violation not identified in the written state5 ment requested under subsection (i).’’. 

6 SEC. 11. TIME PERIODS FOR ISSUING CITATIONS. 

7 Section— 

8 (1) 9(a) of the Act (29 U.S.C. 658(a)) is 

9 amended— 

10 (A) by striking ‘‘upon inspection’’ and in11 serting ‘‘upon the initiation of inspection’’; 

12 (B) by striking ‘‘with reasonable prompt13 ness’’ and inserting ‘‘within thirty working 

14 days’’; and 

15 (C) by inserting after the first sentence, 

16 the following: ‘‘Such 30 day period may be 

17 waived by the Secretary for good cause shown, 

18 including, but not limited to, cases involving 

19 death, novel issues, large or complex worksites, 

20 or pursuant to an agreement by the parties to 

21 extend such period.’’; and 

22 (2) 10(a) of the Act (29 U.S.C. 659(a)) is 

23 amended— 

24 (B) by striking ‘‘within a reasonable time’’ 

25 and inserting ‘‘within thirty days’’; and 
12 

•S 2066 IS 

1 (C) by inserting after the first sentence, 

2 the following: ‘‘Such 30 days period may be 

3 waived by the Secretary for good cause shown, 

4 including, but not limited to, cases involving 

5 death, novel issues, large or complex worksites, 

6 or pursuant to an agreement by the parties to 

7 extend such period.’’. 

8 SEC. 12. TIME PERIODS FOR CONTESTING CITATIONS. 

9 Section 10 of the Act (29 U.S.C. 659) is amended 

10 by striking ‘‘fifteen’’ each place it appears and inserting 

11 ‘‘thirty’’. 

12 SEC. 13. PENALTIES. 

13 Section 17 of the Act (29 U.S.C. 666) is amended 

14 by inserting the following: 

15 ‘‘(m) The Secretary shall not use ‘other than serious’ 

16 citations as a basis for issuing repeat or willful citations.’’. 

17 SEC. 14. UNANTICIPATED CONDUCT. 

18 Section 9 of the Act (29 U.S.C. 658) is amended by 

19 adding at the end the following: 

20 ‘‘(d) No citation may be issued under this section for 

21 any violation that is the result of actions by any person 

22 that are contrary to established, communicated, and en23 forced work rules that would have prevented the violation. 

24 This subsection shall not be construed to eliminate or 
13 

•S 2066 IS 

1 modify elements of proof currently required to support a 

2 citation.’’. 

3 SEC. 15. ADOPTION OF NON-GOVERNMENTAL STANDARDS. 

4 The Act (29 U.S.C. 651 et seq.) is amended by add5 ing after section 4 the following: 

6 ‘‘SEC. 4A. ADOPTION OF NON-GOVERNMENTAL STANDARDS. 

7 ‘‘The Secretary shall not promulgate or enforce any 

8 finding, guideline, standard, limit, rule, or regulation that 

9 is subject to incorporation by reference, or modification, 

10 as the result of a determination reached by any organiza11 tion, unless the Secretary affirmatively finds that the de12 termination has been made by an organization and proce13 dure that complies with the requirements of section 3(9). 

14 Such finding and a summary of its basis shall be published 

15 in the Federal Register and shall be deemed a final agency 

16 action subject to review by a United States District Court 

17 in accordance with section 706 of title 5, United States 

18 Code.’’. 

19 SEC. 16. EMPLOYEE RESPONSIBILITY. 

20 The Act (29 U.S.C. 651 et seq.) is amended by add21 ing after section 9 the following: 

22 ‘‘SEC. 9A. EMPLOYEE RESPONSIBILITY. 

23 ‘‘(a) IN GENERAL.—Notwithstanding any other pro24 vision of this Act, an employee who, with respect to em25 ployer-provided personal protective equipment, willfully 
14 

•S 2066 IS 

1 violates any requirement of section 5 or any standard, 

2 rule, or order promulgated pursuant to section 6, or any 

3 regulation prescribed pursuant to this Act, may be as4 sessed a civil penalty, as determined by the Secretary, but 

5 not to exceed $50 for each violation. 

6 ‘‘(b) CITATIONS.—If, upon inspection or investiga7 tion, the Secretary or the authorized representative of the 

8 Secretary believes that an employee of an employer has, 

9 with respect to employer-provided personal protective 

10 equipment, violated any requirement of section 5 or any 

11 standard, rule, or order promulgated pursuant to section 

12 6, or any regulation prescribed pursuant to this Act, the 

13 Secretary shall within 30 days issue a citation to the em14 ployee. Each citation shall be in writing and shall describe 

15 with particularity the nature of the violation, including a 

16 reference to the provision of this Act, standard, rule, regu17 lation, or order alleged to have been violated. No citation 

18 may be issued under this section after the expiration of 

19 6 months following the occurrence of any violation. 

20 ‘‘(c) NOTIFICATION.— 

21 ‘‘(1) IN GENERAL.—The Secretary shall notify 

22 an employee— 

23 ‘‘(A) by certified mail of a citation under 

24 subsection (b) and the proposed penalty; and 
15 

•S 2066 IS 

1 ‘‘(B) that such employee has 30 working 

2 days within which to notify the Secretary that 

3 the employee wishes to contest the citation or 

4 proposed penalty. 

5 ‘‘(2) FINAL ORDER.—If an employee does not 

6 file a notification described in paragraph (1)(B) with 

7 the Secretary within 30 working days, the citation 

8 and proposed penalty shall— 

9 ‘‘(A) be deemed a final order of the Com10 mission; and 

11 ‘‘(B) not be subject to review by any court 

12 or agency. 

13 ‘‘(d) CONTESTING OF CITATION.— 

14 ‘‘(1) IN GENERAL.—If an employee files a noti15 fication described in paragraph (1)(B) with the Sec16 retary within 30 working days, the Secretary shall 

17 immediately advise the Commission of such notifica18 tion, and the Commission shall afford the employee 

19 an opportunity for a hearing in accordance with sec20 tion 554 of title 5, United States Code. 

21 ‘‘(2) ISSUANCE OF FINAL ORDER.—The Com22 mission, after a hearing described in paragraph (1), 

23 shall issue an order, based on findings of fact, af24 firming, modifying, or vacating the Secretary’s cita25 tion or proposed penalty, or directing other appro-
16 

•S 2066 IS 

1 priate relief. Such order shall become final 30 days 

2 after issuance of the order.’’. 

Æ