article: SECTION 1. SHORT TITLE. This Act may be cited as the ``Occupational Safety and Health- Fairness Act of 2003''. SEC. 2. 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''. SEC. 3. WILLFUL VIOLATIONS. Section 17(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666(a)) is amended by inserting at the end, ``A violation is willful only if the employer (1) knew that the alleged condition violated a standard, rule, order or regulation and, without a good faith belief in the legality in its conduct, knowingly disregarded the requirement of the standard, rule, order, or regulation, or (2) knew that employees were, or that it was reasonably predictable that employees would be, exposed to a hazard causing or likely to cause death or serious physical injury and recklessly disregarded the exposure of employees to that hazard.''. SEC. 4. FAIRNESS OF PENALTY ASSESSMENT Section 17(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666(j)) is amended-- (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 business 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 construction 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 amended 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 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) Subsection (f) is amended to read as follows: ``(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 members 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 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. 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 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 $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 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 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 Commission with respect to all questions of law shall be given deference if reasonable.''.
summary: Occupational Safety and Health Fairness Act of 2003 - Amends the Occupational Safety and Health Act of 1970 (OSHA) to revise requirements relating to enforcing, contesting, reviewing, and adjudicating citations, failures to correct violations, and assessments of penalties.Exempts employers from a 15-day deadline for notifying the Secretary of Labor of their intent to contest OSHA citations, notices of uncorrected violations, and proposed penalties, if their failure to meet such deadline results from mistake, inadvertence, surprise, or excusable neglect.Limits what may be considered willful violations under OSHA.Requires the Occupational Safety and Health Review Commission (OSHRC) to give de novo consideration to evidence of the penalty's appropriateness with respect to these factors: (1) size and financial condition of the business of the employer; (2) gravity of the violation, considering probability of harm, nature and extent of the harm, number of affected employees, and other relevant factors; (3) employer's good faith, including efforts to comply or abate; (4) history and recentness of substantially similar previous violations of the cited employer at the same nonconstruction worksite and construction worksites in the same State; and (5) the employer's, employees', or other persons' degree of responsibility or culpability for the violation.Increases OSHRC membership from three to five.Awards attorney's fees and costs to a prevailing employer in an administrative adversary adjudication, or a judicial review of an action, instituted under OSHA, if at the time such adjudication was initiated or such action filed the employer had not more than: (1) 100 employees; and (2) $1,500,000 net worth.Revises judicial review provisions to require deference to be given to reasonable OSHRC conclusions with respect to all questions of law.