II 
Calendar No. 535 
108TH CONGRESS 
2D SESSION 
H. R. 2728 
IN THE SENATE OF THE UNITED STATES 
MAY 19, 2004 
Received and read the first time 
MAY 20, 2004 
Read the second time and placed on the calendar 
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 Commis-
sion; to provide for an independent review of citations 
issued by the Occupational Safety and Health Adminis-
tration; to provide for the award of attorney’s fees and 
costs to very small employers when they prevail in litiga-
tion prompted by the issuance of citations by the Occu-
pational 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.
HR 2728 PCS 
Be it enacted by the Senate and House of Representa-
tives 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 SAFE-
TY AND HEALTH SMALL BUSI-
NESS 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’’.
HR 2728 PCS 
SEC. 102. CONTESTING CITATIONS UNDER THE OCCUPA-
TIONAL 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 fail-
ure results from mistake, inadvertence, surprise, or excus-
able 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 ‘‘(un-
less such failure results from mistake, inadvertence, sur-
prise, or excusable neglect)’’ after ‘‘assessment of pen-
alty’’. 
TITLE II—OCCUPATIONAL SAFE-
TY 
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 amend-
ed as follows:
HR 2728 PCS 
(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 con-
tinuation 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 con-
firmed to serve. Any vacancy caused by the death, 
resignation, or removal of a member before the expi-
ration 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.
HR 2728 PCS 
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 in-
serting 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 with-
out 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 ‘ad-
versary 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
HR 2728 PCS 
‘‘(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 cir-
cumstances 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.’’.
HR 2728 PCS 
TITLE V—PAPERWORK AND REG-
ULATORY 
IMPROVEMENTS 
ACT 
SEC. 501. SHORT TITLE. 
This title may be cited as the ‘‘Paperwork and Regu-
latory 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 Manage-
ment 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 government-
wide 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,
HR 2728 PCS 
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 Appropria-
tions Act, 2003 (House Report 107–575) stated, 
‘‘The Office of Management and Budget has re-
ported that paperwork burdens on Americans have 
increased in each of the last six years. Since the In-
ternal Revenue Service imposes over 80 percent of 
these paperwork burdens, the Committee believes 
that OMB should work to identify and review pro-
posed and existing IRS paperwork.’’. 
(4) One key to success in paperwork reduction 
is the Office of Management and Budget’s system-
atic review of every new and revised agency paper-
work 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 Roch-
ester Institute of Technology, in their October 2001 
publication titled ‘‘The Impact of Regulatory Costs 
on Small Firms’’, estimated that Americans spend
HR 2728 PCS 
$843 billion annually to comply with Federal regula-
tions. Congress has a responsibility to review major 
rules (as defined by section 804 of title 5, United 
States Code) proposed by agencies, especially regu-
latory alternatives and the costs and benefits associ-
ated with each of them. In 2000, in the Truth in 
Regulating Act, Congress established new responsi-
bility 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 Manage-
ment and Budget for the first time to submit an an-
nual report to Congress on the total costs and bene-
fits to the public of Federal rules and paperwork re-
quirements, 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 simulta-
neously review both the on-budget and off-budget 
costs associated with the regulatory and paperwork 
requirements of each Federal agency. In 2000, Con-
HR 2728 PCS 
gress made this a permanent annual reporting re-
quirement. 
(7) The Office of Management and Budget re-
quires agencies to submit annual budget and paper-
work burden estimates in order to prepare certain 
required reports for Congress, but it does not re-
quire agencies to submit estimates on costs and ben-
efits 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 sub-
section: 
‘‘(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 Busi-
ness Administration) conduct a review of the collections 
of information conducted by the Internal Revenue Service 
to identify actions that the Internal Revenue Service can
HR 2728 PCS 
(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 RE-
PORT 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 Congres-
sional responsibility for regulatory decisions developed 
under the laws enacted by Congress. The Truth in Regu-
lating 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 insert-
ing ‘‘$5,000,000 for each fiscal year beginning after 
September 30, 2004’’; and 
(3) in section 6— 
(A) in the heading, by striking ‘‘AND DU-
RATION OF PILOT PROJECT’’; 
(B) in subsection (a), by striking ‘‘(a) EF-
FECTIVE DATE.—’’; and 
(C) by striking subsections (b) and (c).
HR 2728 PCS 
(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 IN-
FORMATION
ON
REGULATIONS
AND
PAPERWORK
TO 
OMB.—Section 624 of the Treasury and General Govern-
ment Appropriations Act, 2001 (as enacted into law by 
Public Law 106–554; 114 Stat. 2763A–161), is amend-
ed— 
(1) by redesignating subsections (b), (c), and 
(d) as subsection (c), (d), and (e), respectively; and 
(2) by inserting after subsection (a) the fol-
lowing 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:
HR 2728 PCS 
‘‘§ 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 regu-
latory budgets. Such budgets shall include the presen-
tation 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 con-
sideration 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 as-
sociated report submitted to Congress for calendar year 
2006 under section 624 of the Treasury and General Gov-
ernment Appropriations Act, 2001 (as enacted into law 
by Public Law 106–554; 114 Stat. 2763A–161), a presen-
tation of the different levels of estimated regulatory bene-
fits and costs with respect to the regulatory alternatives 
under consideration for one or more of the major regu-
HR 2728 PCS 
latory programs of each of the agencies designated under 
subsection (a). 
‘‘(d) In the accounting statement and associated re-
port submitted to Congress for calendar year 2009 under 
section 624 of the Treasury and General Government Ap-
propriations 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 Re-
form 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 budg-
eting. The report shall— 
‘‘(1) assess the feasibility and advisability of in-
cluding 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 partici-
pating agencies in conducting the study; and 
‘‘(3) recommend, to the extent the President 
considers necessary or expedient, proposed legisla-
tion regarding regulatory budgets. 
‘‘(e) The report on the study on regulatory budgeting 
required under subsection (d) shall also be submitted di-
rectly to the Committees on the Budget and on Govern-
ment Reform of the House of Representatives and the
HR 2728 PCS 
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: 
JEFF TRANDAHL, 
Clerk.
Calendar No. 535 
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 Occu-
pational Safety and Health Administration; to 
provide for greater efficiency at the Occupational 
Safety and Health Review Commission; to pro-
vide for an independent review of citations issued 
by the Occupational Safety and Health Adminis-
tration; 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 Re-
duction Act and titles 5 and 31, United States 
Code, to reform Federal paperwork and regu-
latory processes. 
MAY 20, 2004 
Read the second time and placed on the calendar