109TH CONGRESS 
1ST SESSION 
H. R. 739
AN ACT 
To amend the Occupational Safety and Health Act of 1970 
to provide for adjudicative flexibility with regard to the 
filing of a notice of contest by an employer following 
the issuance of a citation or proposed assessment of 
a penalty by the Occupational Safety and Health Admin-
istration; to provide for greater efficiency at the Occupa-
tional Safety and Health Review Commission; to provide 
for judicial deference to conclusions of law determined 
by the Occupational Safety and Health Review Commis-
sion with respect to an order issued by the Commission; 
and to provide for the award of attorneys’ fees and 
costs to small employers when such employers prevail 
in litigation prompted by the issuance of a citation by 
the Occupational Safety and Health Administration.
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 OF 2005
Sec. 101. Short title. 
Sec. 102. Contesting citations under the Occupational Safety and Health Act 
of 1970. 
Sec. 103. Effective date. 
TITLE II—OCCUPATIONAL SAFETY AND HEALTH REVIEW 
COMMISSION EFFICIENCY ACT OF 2005
Sec. 201. Short title. 
Sec. 202. Occupational Safety and Health Review Commission. 
TITLE III—OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT 
REVIEW OF OSHA CITATIONS ACT OF 2005
Sec. 301. Short title. 
Sec. 302. Independent review. 
TITLE IV—OCCUPATIONAL SAFETY AND HEALTH SMALL 
EMPLOYER ACCESS TO JUSTICE ACT OF 2005 
Sec. 401. Short title. 
Sec. 402. Award of attorneys’ fees and costs.
TITLE I—OCCUPATIONAL SAFE-
TY AND HEALTH SMALL BUSI-
NESS DAY IN COURT ACT OF 
2005
SEC. 101. SHORT TITLE. 
This title may be cited as the ‘‘Occupational Safety 
and Health Small Business Day in Court Act of 2005’’.
SEC. 102. CONTESTING CITATIONS UNDER THE OCCUPA-
TIONAL SAFETY AND HEALTH ACT OF 1970. 
Section 10 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 659) is amended—
(1) in the second sentence of subsection (a), by 
inserting after ‘‘assessment of penalty’’ the fol-
lowing: ‘‘(unless such failure results from mistake, 
inadvertence, surprise, or excusable neglect)’’; and 
(2) in the second sentence of subsection (b), by 
inserting after ‘‘assessment of penalty’’ the fol-
lowing: ‘‘(unless such failure results from mistake, 
inadvertence, surprise, or excusable neglect)’’. 
SEC. 103. EFFECTIVE DATE. 
The amendments made by this title shall apply to a 
citation or proposed assessment of penalty issued by the 
Occupational Safety and Health Administration that is 
issued on or after the date of the enactment of this title. 
TITLE II—OCCUPATIONAL SAFE-
TY 
AND 
HEALTH 
REVIEW 
COMMISSION 
EFFICIENCY 
ACT OF 2005
SEC. 201. SHORT TITLE. 
This title may be cited as the ‘‘Occupational Safety 
and Health Review Commission Efficiency Act of 2005’’.
SEC. 202. OCCUPATIONAL SAFETY AND HEALTH REVIEW 
COMMISSION. 
(a) INCREASE IN NUMBER OF MEMBERS AND CRI-
TERIA FOR MEMBERSHIP.—Section 12 of the Occupa-
tional Safety and Health Act of 1970 (29 U.S.C. 661) 
is amended—
(1) in the second sentence of subsection (a)—
(A) by striking ‘‘three members’’ and in-
serting ‘‘five members’’; and 
(B) by inserting ‘‘legal’’ before ‘‘training’’; 
(2) in the first sentence of subsection (b), by 
striking ‘‘except that’’ and all that follows through 
the period and inserting the following: ‘‘except that 
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 the term of that member 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 a member was ap-
pointed shall be filled only for the remainder of such 
term.’’; and 
(3) in subsection (f), by striking ‘‘two mem-
bers’’ the first place it appears and inserting ‘‘three 
members’’.
(b) NEW POSITIONS.—Of the two vacancies for mem-
bership on the Occupational Safety and Health Review 
Commission created by subsection (a)(1)(A), one shall be 
appointed by the President for a term expiring on April 
27, 2008, and the other shall be appointed by the Presi-
dent for a term expiring on April 27, 2010. 
(c) EFFECTIVE DATE.—The amendment made by 
subsection (a)(1)(B) shall apply beginning with the 2 va-
cancies referred to in subsection (b) and all subsequent 
appointments to the Commission. 
TITLE III—OCCUPATIONAL SAFE-
TY 
AND 
HEALTH 
INDE-
PENDENT REVIEW OF OSHA 
CITATIONS ACT OF 2005
SEC. 301. SHORT TITLE. 
This title may be cited as the ‘‘Occupational Safety 
and Health Independent Review of OSHA Citations Act 
of 2005’’. 
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 at 
the end the following: ‘‘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 SAFE-
TY AND HEALTH SMALL EM-
PLOYER ACCESS TO JUSTICE 
ACT OF 2005 
SEC. 401. SHORT TITLE. 
This title may be cited as the ‘‘Occupational Safety 
and Health Small Employer Access to Justice Act of 
2005’’. 
SEC. 402. AWARD OF ATTORNEYS’ FEES AND COSTS. 
The Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.) is amended by redesignating sections 
32, 33, and 34 as sections 33, 34, and 35, respectively, 
and by inserting after section 31 the following new section: 
‘‘AWARD OF ATTORNEYS’ FEES AND COSTS 
‘‘SEC. 32. (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 
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 
‘‘(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) shall apply to proceedings commenced on or after 
the date of enactment of this section.
‘‘(2) COURT
PROCEEDINGS.—Subsection (b) 
shall apply to proceedings for judicial review com-
menced on or after the date of enactment of this 
section.’’.
Passed the House of Representatives July 12, 2005. 
Attest:
Clerk.