(1) by inserting the words, ‘‘and de novo’’ after 
the word ‘‘due’’; and 
(2) striking all after the word ‘‘consideration’’ 
and inserting in lieu thereof: ‘‘to the evidence of the 
appropriateness of the penalty with respect to at 
least the following factors: 
‘‘(1) the size and financial condition of the busi-
ness of the employer; 
‘‘(2) the gravity of the violation, considering the 
probability of harm, the nature and extent of the 
harm, the number of affected employees, and other 
relevant factors; 
‘‘(3) the good faith of the employer, including 
the employer’s good faith efforts to comply or abate; 
‘‘(4) the history and recentness of substantially 
similar previous violations of the cited employer at 
the same nonconstruction worksite and at construc-
tion worksites within the same State; and 
‘‘(5) the degree of responsibility or culpability 
for the violation of the employer, the employees, and/
or other persons.’’.
SEC. 5. 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: 
(1) In subsection (a), by striking the word 
‘‘three’’ and inserting in lieu thereof, the word 
‘‘five;’’ and inserting before the word ‘‘training’’ the 
word ‘‘legal’’. 
(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 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 ap-
pointed 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) Subsection (f) is amended to read as fol-
lows: 
‘‘(f) The Chairman of the Commission is authorized 
to delegate to any panel of three or more members any
or all of the powers of the Commission. For the purpose 
of carrying out its functions under this chapter, 3 mem-
bers of the Commission shall constitute a quorum, except 
that 2 members shall constitute a quorum for any sub-
panel designated by the Chairman under this subsection.’’. 
(b) NEW POSITIONS.—Of the two vacancies for mem-
bership 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. 
SEC. 6. 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 
section 32 through 34 as 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 $1,500,000 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 
‘‘(2) had not more than 100 employees and a 
net worth of not more than $1,500,000 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 Act. 
‘‘(2) COURT PROCEEDINGS.—Subsection (b) of 
this section applies to proceedings for judicial review 
commenced on or after the date of enactment of this 
Act.’’. 
SEC. 7. 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 Com-
mission with respect to all questions of law shall be given 
deference if reasonable.’’.
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