[House Report 108-487]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-487
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OCCUPATIONAL SAFETY AND HEALTH SMALL BUSINESS DAY IN COURT ACT OF 2004
_______
May 13, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Boehner, from the Committee on Education and the Workforce,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2728]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 2728) 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, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment (stated in terms of the page and line numbers
of the introduced bill) is as follows:
Page 1, Line 5, strike ``2003'' and insert ``2004''.
Purpose
H.R. 2728, the ``Occupational Safety and Health Small
Business Day in Court Act of 2004,'' is intended to give to
parties under the Occupational Safety and Health Act of 1970
(the ``OSH Act'') the same basic right to seek relief from a
default judgment as that possessed by nearly every other
federal litigant in the nation. Specifically, H.R. 2728
clarifies the authority of the Occupational Safety and Health
Review Commission (``OSHRC'' or the ``Commission'') to grant
relief to an employer that by reason of mistake, inadvertence,
surprise, or excusable neglect fails to respond to a citation
within the fifteen working days provided under law. H.R. 2728
maintains Congress' desire to promote a necessary finality in
disputes under the OSH Act while preventing the avoidable
injustices that may result under current law. H.R. 2728 is a
remedial measure intended to prevent injustice and assure
fairness in the adjudicatory process, and is purposefully
designed to cause no diminution in the substantive workforce
protections already in place under the OSH Act.
Committee Action
H.R. 2728, the ``Occupational Safety and Health Small
Business Day in Court Act of 2003,'' was introduced by
Congressman Charlie Norwood on July 15, 2003, and was referred
to the Subcommittee on Workforce Protections of the Committee
on Education and the Workforce. A hearing on the measure was
conducted on June 17, 2003, as a part of a more comprehensive
hearing on H.R. 1583, the ``Occupational Safety and Health
Fairness Act of 2003.'' \1\
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\1\ See Hearing on H.R. 1583, ``The Occupational Safety and Health
Fairness Act of 2003,'' before the Subcommittee on Workforce
Protections, Committee on Education and the Workforce, U.S. House of
Representatives, 108th Congress, First Session, Serial No. 108-20
(hereinafter ``Hearing on H.R. 1583'').
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Comments and views from experts in the field of safety and
health and other concerned citizens were taken on H.R. 1583 at
the June 17, 2003 hearing of the Subcommittee. At this hearing,
the Subcommittee heard testimony from Mr. Brian Landon of
Canton, Pennsylvania, testifying on behalf of the National
Federation of Independent Businesses; Mr. John Molovich, Health
and Safety Specialist, United Steelworkers of America, of
Pittsburgh, Pennsylvania; Mr. Ephraim Cohen, a small business
owner from New York; and Arthur Sapper, Esq., an attorney of
the law firm McDermott, Will & Emery in Washington, DC,
testifying on behalf of the U.S. Chamber of Commerce.
Legislation incorporating section 2 of H.R. 1583 was
subsequently introduced as H.R. 2728 on July 15, 2003. The
content of H.R. 2728, as introduced, is identical to section 5
of H.R. 1583.
On July 24, 2003, the Subcommittee on Workforce Protections
favorably reported H.R. 2728, without amendment, by voice vote.
On May 5, 2004, the Committee on Education and the
Workforce considered H.R. 2728. An amendment by Chairman
Boehner, changing the short title of the bill from the
``Occupational Safety and Health Small Business Day in Court
Act of 2003'' to the ``Occupational Safety and Health Small
Business Day in Court Act of 2004'' was accepted by unanimous
consent. The Committee ordered H.R. 2728, as thus amended,
favorably reported to the House of Representatives by a roll
call vote of 24 yeas and 20 nays.
Summary
It is a well-established legal principle in the United
States that relief from a final judgment, order, or proceeding
that is caused by mistake, inadvertence, surprise, or excusable
neglect should be resolved in favor of setting aside that
default judgment so that the case may be tried on the merits.
While this legal maxim is the practice in almost every federal
court in the United States, proceedings under the OSH Act have
at times in the past departed from this rule. H.R. 2728 simply
assures that this widely-held principle applies to proceedings
under the OSH Act. Specifically, H.R. 2728 adds language to
Section 10 of the OSH Act, 29 U.S.C. Sec. 659(a), clarifying
that a litigant under the OSH Act may be relieved from a
default judgment when its failure to contest a citation in a
timely manner results from ``mistake, inadvertence, surprise,
or excusable neglect.'' The language inserted is identical to
language contained in Federal Rule of Civil Procedure 60(b),\2\
and is intended simply to authorize OSHRC to deem any notice of
contest timely filed if it finds under the totality of the
circumstances that an employer's failure to meet its deadline
was the result of one of the aforementioned factors.
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\2\ Federal Rule of Civil Procedure 60(b) states in relevant part:
``Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
Fraud, Etc. On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a final
judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect. * * *'' 28 U.S.C.
Sec. 60(b).
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Committee Views
Background
Section 8(a) of the OSH Act specifically empowers the
Secretary of Labor, subject to limitation, to enter places of
work to ``inspect and investigate * * * all pertinent
conditions, structures, machines, apparatus, devices,
equipment, and materials therein.'' \3\ In cases where such
inspection and investigation reveals the presence of what are
perceived to be violations of the OSH Act, the Occupational
Safety and Health Administration (``OSHA'') is authorized to
issue a citation alleging with specificity the violation(s);
identifying the type or classification of such violation(s)
believed to be appropriate by OSHA; proposing a penalty to be
assessed for such alleged violation(s); and establishing a
required date by which the identified violation(s) must be
abated.\4\
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\3\ See 29 U.S.C. Sec. 657(a).
\4\ See 29 U.S.C. Sec. 658(a).
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Section 10(a) of the OSH Act specifies that upon the
receipt of an OSHA citation, an employer has fifteen working
days in which to notify OSHA of its intention to challenge or
contest any or all of the elements contained therein.\5\ If the
employer has properly contested any of the elements of the OSHA
citation,\6\ the employer is entitled to a hearing, after which
OSHRC may affirm, modify or vacate the Secretary's citation
and/or the proposed penalty, or direct other appropriate
relief.\7\
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\5\ See 29 U.S.C. Sec. 659(a).
\6\ Generally, an employer's notice of intent to contest must be in
writing and must indicate a clear intent on the part of the employer to
contest one or more of the elements of the citation. The fifteen day
working period specified in the OSH Act generally begins to run when
service of a type reasonably calculated to provide an employer with
knowledge of the citation occurs. While the OSH Act does not
specifically define what constitutes ``working days,'' this term is
defined in OSHA's regulations and OSHRC's rules to mean ``Mondays
through Fridays, exclusive of federal holidays.'' See 29 CFR
1903.21(c); 29 CFR 2200.(1)(l).
\7\ See 29 U.S.C. Sec. 659(c).
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If an employer does not contest an OSHA citation within the
specified statutory fifteen day period, under section 10 of the
OSH Act the ``citation and the assessment, as proposed, shall
be deemed a final order of the Commission and not subject to
review by any court or agency.'' \8\ Put more simply, the
failure to file a notice of contest within fifteen days, for
any reason, means that a default judgment is entered against
the employer, from which it has no appeal.\9\
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\8\ 29 U.S.C. Sec. 659(a).
\9\ In its consideration of this measure, the Subcommittee on
Workforce Protections heard detailed testimony as to the possible
consequences of an employer's failure to file a timely notice of
contest, which may include: (1) an implied order to abate the cited
condition by the date specified in the citation; (2) an obligation to
pay the amount of the proposed penalty; and (3) an acceptance of OSHA's
classification of the violation. Less obvious consequences may include:
(1) inclusion of the citation in the employers history of previous
violations (which will increase subsequent proposed penalties); (2)
exposure to possible future citation classifications of ``repeat'' or
``willful'' violations (increasing possible penalty levels and raising
the possibility of criminal liability); (3) possible impact on an
employer's reputation, potentially affecting consumer perception and
damaging market position; (4) possible collateral use of the final
order against the employer in related civil litigation; and (5)
possible disqualification in some jurisdictions from bidding upon
public construction contracts. See Testimony of Arthur G. Sapper,
Hearing on H.R. 1583, at 59-60 (detailing consequences of employer's
failure to file timely notice of contest of OSHA citation).
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By way of contrast, under the Federal Rules of Civil
Procedure, litigants in federal court are entitled to relief
from a default judgment based on the failure to file a timely
response, where such failure is caused by reason of mistake,
inadvertence, surprise, or excusable neglect, determined with
reference to the totality of the circumstances. Despite this
well-established principle of law, a series of court cases and
differing interpretations of the OSH Act by OSHA and the
Commission have made it highly uncertain whether the Commission
has the same power to grant employers such relief in
appropriate circumstances, or whether an employer who misses
the fifteen-day deadline for any reason, no matter how
meritorious, is simply ``guilty'' before OSHA. H.R. 2728 makes
clear that OSHRC enjoys that authority, and is empowered to
grant relief to an employer in the appropriate circumstances.
Documenting existing legal uncertainty
The current state of legal uncertainty over whether or not
OSHRC is vested with statutory authority to exercise
flexibility in relieving parties, in appropriate circumstances,
from what would otherwise be deemed as final orders under
section 10 is not new. These differing interpretations result
from the conflicting language contained in section 12(g) and
section 10(a) of the OSH Act. Specifically, in section 12(g),
Congress stated that unless OSHRC ``adopted a different rule *
* * its proceedings shall be in accordance with the Federal
Rules of Civil Procedure.'' \10\ In section 10(a), however,
Congress provided that if ``within fifteen working days from
the receipt of the notice issued by the Secretary the employer
fails to notify the Secretary that he intended to contest * * *
the citation and the assessment, as proposed, shall be deemed a
final order of the Commission and not subject to review by any
court or agency.'' \11\ Historically, the conflict in these two
provisions of the OSH Act has been the source of disagreement
over whether OSHRC possesses the authority, pursuant to section
12(g), to relieve employers from a final judgment entered
against them in accordance with Rule 60(b) or whether section
10(a) precludes such relief.
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\10\ 29 U.S.C. Sec. 669(g). OSHRC itself has promulgated a rule
specifying that unless an OSHRC rule governs a point the Federal Rules
of Civil Procedure shall apply. See 29 CFR 2200.2(b).
\11\ 29 U.S.C. Sec. 659(a).
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Historic judicial uncertainty and the LeFrois case
In one of OSHRC's earliest cases, the Commission exhibited
its confusion over Congress' intended meaning of section 10 by
holding that it could not apply Rule 60(b) of the Federal Rules
of Civil Procedure because it lacked jurisdiction over an
appeal of an OSHA citation if a notice of contest were not
timely filed.\12\ In 1981, the Commission reversed its
position, adopting instead the holding of the Third Circuit
Court of Appeals, which held that OSHRC did, in fact, have the
authority to apply Rule 60(b) to excuse some inadvertent late
filings.\13\ The Commission has maintained this position since
that time. OSHA, in contrast, has maintained its position that
OSHRC lacks such authority, and that the fifteen-day rule set
forth in section 10(a) of the OSH Act governs.
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\12\ See Secretary v. Plessy Burton, Inc., 12 OSHRC 577, 1974
OSAHRC LEXIS 145 (Oct. 18, 1974). Remarkably, in Plessy the Secretary
of Labor had moved OSHRC to vacate an uncontested citation item because
further investigation indicated that ``there was, in fact, no
violation.''
\13\ See Secretary v. Branciforte Builders Inc., OSHRC Docket No.
80-1920, 1981 OSAHRC LEXIS 138 (July 13, 1981) (adopting holding of
U.S. Circuit Court of Appeals for Third Circuit in J.I. Hass Co. v.
OSHRC, 648 F.2d 190, 195 (3d Cir. 1981) (concluding that OSHRC has
authority to excuse late filings through application of Rule 60(b)).
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In 2002, the decision of the United States Court of Appeals
for the Second Circuit in Chao v. Russell P. LeFrois Builder,
Inc.,\14\ renewed urgency in the need for Congress to reexamine
this issue. As the LeFrois case was summarized before the
Subcommittee on Workforce Protections:
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\14\ 291 F.3d 219 (2d Cir. 2002).
OSHA issued citations and $11,265 in proposed
penalties to that company by certified mail. A
secretary for the company got the envelope from the
post office, and put it with the day's other mail on
the front seat of her car. The envelope with the OSHA
citation apparently slipped behind the seat, where it
was found after the fifteen-working-day contest
deadline expired. The company had used the same mail
pickup system for 18 years and had not previously had a
problem with it. LeFrois promptly filed a notice of
contest, and asked the independent Occupational Safety
and Health Review Commission for ``a chance to tell our
side and to defend ourselves.'' \15\
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\15\ Testimony of Arthur G. Sapper, Esq., Hearing on H.R. 1583, at
58.
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In LeFrois, OSHRC excused the lateness of the employer's
notice of contest, finding that its failure to respond in a
timely fashion was a case of excusable neglect.\16\
Nevertheless, despite the Commission's willingness to excuse
the employer's justified failure to file a timely notice, OSHA
appealed the decision of OSHRC to the U.S. Court of Appeals for
the Second Circuit. OSHA argued that under section 10(a), the
Commission did not have authority to waive the fifteen-day
requirement for any reason. OSHRC in turn argued that it had
the authority under section 12(g) to apply Rule 60(b) to
relieve the employer from the default judgment entered against
it. The Second Circuit found in favor of OSHA, holding that
OSHRC ``does not have this [60(b)] authority.''
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\16\ See 291 F.3d at 225.
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Arthur G. Sapper, Esq., an expert legal witness well-versed
in the law of workplace safety and health, testified before the
Subcommittee on Workforce Protections as to the effect of the
LeFrois case:
According to a recent decision by the U.S. Court of
Appeals for the Second Circuit [LeFrois] * * * an
employer flatly loses its opportunity to defend itself
before the Occupational Safety and Health Review
Commission, and will be deemed guilty, if it misses a
rigid fifteen working-day deadline to file a notice
contesting an OSHA citation, even if the employer had a
good excuse for missing that deadline. The employer is
out of luck and the government wins without even
proving its case.\17\
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\17\ Testimony of Arthur G. Sapper, Hearing on H.R. 1583, at 58.
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Continued uncertainty: The Villa Marina Yacht case
More recently this issue was addressed, and the continuing
uncertainty of the law in this area recognized, in Secretary of
Labor v. Villa Marina Yacht Harbor.\18\ In Villa Marina, OSHA
maintained its position that ``Rule 60 is a procedural rule
that cannot be used to avoid a limitation on OSHRC's
authority.'' \19\ The facts of Villa Marina were largely not in
dispute:
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\18\ Secretary of Labor v. Villa Marina Yacht Harbor, OSHRC Docket
No. 01-0830 (2003).
\19\ Brief of Secretary of Labor, Secretary of Labor v. Villa
Marina Yacht Harbor, at 11.
OSHA sent the citations and notification in two
separate packages to the Post Office Box designated by
Villa Marina during the OSHA inspection as its mailing
address. On January 18, 2001, the packages were picked-
up and signed for by a messenger employed by Villa
Marina. Based on this date of receipt, Villa Marina's
fifteen-day contest period expired on February 8, 2001.
On January 19, 2001, the messenger brought the mail he
had picked up the day before, including the package
from OSHA, to the company. He gave the citations and
notification to a secretary, but did not inform her
that he had picked up the mail the previous day. The
secretary stamped both the citation and the
notification as received on January 19, 2001 leading
Villa Marina to believe it had one more day than it
actually had with which to file a timely notice of
contest. Later that day, a Villa Marina supervisor
discussed the OSHA matter with the employer's attorney.
Thereafter, a notice of contest was prepared and dated
February 9, 2001, one day after the period of contest
had expired.\20\
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\20\ Decision, Secretary of Labor v. Villa Marina Yacht Harbor,
OSHRC Docket No. 01-0830 (2003), at 2-3.
An OSHRC Administrative Law Judge (``ALJ'') found that the
company, ``did not have orderly procedures in place for the
handling of important documents and/or that [the messenger] was
not properly supervised'' and that, accordingly, the failure of
the employer to file a timelynotice of contest was not
excusable and thus would stand.\21\ In a unanimous decision, OSHRC
adopted the ALJ's findings, agreeing that the company had failed to
demonstrate the facts necessary to make a case for excusable neglect.
More important, OSHRC again expressed its position that it has the
authority to relieve employers from such judgments when the facts of
the case made it appropriate to do so--they simply did not so warrant
in this case.\22\
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\21\ Id. at 10.
\22\ Id. at 4; see also id. at 2 n. 3 & 4. n. 5 (discussing OSHRC
position and precedent with respect to 60(b) authority).
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Resolution of legal uncertainty and judicial conflict
The Committee finds no fault in OSHRC's application of Rule
60(b) to the facts of the case presented in Villa Marina.
Indeed, the Commission's close, fact-based scrutiny and
judicious application of its authority suggests that, if given
clear statutory authority to excuse a missed deadline in
appropriate circumstances, OSHRC would use such authority
sparingly and on the basis of sound precedent under which the
totality of circumstances surrounding the actions of an
employer would be examined before granting such relief.\23\
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\23\ Indeed, one estimate made by OSHRC in 1996 is that Rule 60(b)
motions are made before OSHRC only about thirty times per year, and
that such motions would constitute only about two percent of its case
activity.
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In contrast, the Committee is deeply concerned with the
legal interpretation advanced by OSHA regarding the appropriate
use of Rule 60(b) by OSHRC. Indeed, this position, and how it
might affect OSHRC's ability to excuse missed deadlines in
future cases concerning the application of Rule 60(b), was
discussed in a prominent footnote in the Villa Marina
decision.\24\ In light of the position maintained by OSHA that
its interpretations are to be given deference over those of
OSHRC, the Committee is concerned that in the future OSHRC may
be faced with no choice but to accept OSHA's argument that it
does not possess the authority to apply Rule 60(b) under the
OSH Act.
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\24\ See Decision, Decision, Secretary of Labor v. Villa Marina
Yacht Harbor at 4 n. 5 (noting that ``the Secretary's statutory
limitation argument is a substantial one, particularly in light on the
language in sections 10(a) and 12(g) of the Act'' and that ``the
decision in to the Second Circuit in LeFrois further supports the
Secretary's position in this matter'' but declining to overrule
Commission 60(b) precedent on grounds of stare decisis).
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In light of these conflicting views of OSHRC's authority,
the Committee concludes that legislative resolution of this
matter is necessary. The Committee finds it appropriate that
OSHRC have the ability to apply rule 60(b) principles to
provide more just and fair results in the cases that it hears,
and concludes that the legislative solution embodied in H.R.
2728 is necessary to this end.
CONCLUSION
H.R. 2728 gives employers before OSHRC the same right to
seek relief from a default judgment possessed by nearly every
other litigant in federal court, maintaining Congress' desire
to promote a necessary finality in disputes under the OSH Act
while preventing the avoidable injustices that may result under
current law. H.R. 2728 does so by simply amending the OSH Act
to include language identical to that of Federal Rule of Civil
Procedure 60(b), thereby extending to OSHRC the specific
authority to excuse missed deadlines when the totality of the
surrounding circumstances renders it appropriate to do so. In
using language identical to that used in Federal Rule of Civil
Procedure 60(b), Congress expresses its intent that the well-
developed area of the law that has grown around the use of this
rule in federal practice will guide OSHRC in its application of
this authority.
Section-by-Section Analysis
Section 1. Short title
This act may be cited as the ``Occupational Safety and
Health Business Day in Court Act of 2004.''
Section 2. Contesting citations under the Occupational Safety and
Health Act
This section amends section 10(a) of the Occupational
Safety and Health Act of 1970 to authorize relief from a
default judgment resulting from an employer's failure to file a
notice of contest with OSHA within 15 working days from
receipt, if such failure results from ``mistake, inadvertence,
surprise, or excusable neglect.''
Explanation of Amendments
The bill was ordered reported with an amendment to the
short title.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act (CAA), requires a description of the
application of this bill to the legislative branch. H.R. 2728
amends the Occupational Safety and Health Act (OSH Act) to
grant relief to an employer that by reason of mistake,
inadvertence, surprise, or excusable neglect fails to respond
to a citation within the fifteen working days provided under
law. Section 215 of the CAA applies certain requirements of the
OSH Act, to the legislative branch. The Committee intends to
make the provisions of this bill available to legislative
branch employees and employers in the same way as it is made
available to private sector employees and employers under this
legislation.
Unfunded Mandate Statement
Section 423 of the Congressional Budget & Impoundment
Control Act requires a statement of whether the provisions of
the reported bill include unfunded mandates. The Committee
received a letter regarding unfunded mandates from the Director
of the Congressional Budget Office and as such the Committee
agrees that the bill does not contain any unfunded mandates.
See infra.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the body of this report.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 2728 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 11, 2004.
Hon. John A. Boehner,
Chairman, Committee on Education and the Workforce, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2728, the
Occupational Safety and Health Small Business Day in Court Act
of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Shawn Bishop.
Sincerely,
Douglas Holtz-Eakin, Director.
Enclosure.
H.R. 2728--Occupational Safety and Health Small Business Day in Court
Act of 2004
H.R. 2728 would modify the Occupational Safety and Health
Act to provide exceptions to the 15-day deadline for employers
to file responses to citations made by the Occupational Safety
and Health Agency (OSHA). Under current law, employers who
receive a citation or proposed assessment of penalty from OSHA
must file a notice of contest within 15 days from receipt of
the citation. The citation and assessment are deemed a final
order of the Occupational Safety and Health Review Commission
(OSHRC) if the 15-day deadline is not met. Since the early
1980s, however, OSHRC has applied Rule 60(b) of the Federal
Rules of Civil Procedure and has granted relief from the final
order in cases where an employer filed a late notice of contest
because of ``mistake, inadvertence, surprise, or excusable
neglect.''
H.R. 2728 would codify the equitable standard contained in
Rule 60(b) and ensure consistent application of that standard
across all jurisdictions in cases involving an employer's
failure to file a timely notice of contest. CBO estimates that
implementing H.R. 2728 would not have any effect on the federal
budget.
H.R. 2728 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact is Shawn Bishop. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
Statement of General Performance Goals and Objectives
In accordance with Clause (3)(c) of House Rule XIII, the
goal of H.R. 2728 is to amend the Occupational Safety and
Health Act (OSH Act) to grant relief to an employer that by
reason of mistake, inadvertence, surprise, or excusable neglect
fails to respond to a citation within the fifteen working days
provided under law. The Committee expects the Department of
Labor to implement the changes to the law in accordance with
these stated goals.
Constitutional Authority Statement
H.R. 2728 amends the Occupational Safety and Health Act,
and thus falls within the scope of Congressional powers under
Article I, section 8, clause 3 of the Constitution of the
United States to the same extent as does the OSH Act.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 2728. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SECTION 10 OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
PROCEDURE FOR ENFORCEMENT
Sec. 10. (a) If, after an inspection or investigation, the
Secretary issues a citation under section 9(a), he shall,
within a reasonable time after the termination of such
inspection or investigation, notify the employer by certified
mail of the penalty, if any, proposed to be assessed under
section 17 and that the employer has fifteen working days
within which to notify the Secretary that he wishes to contest
the citation or proposed assessment of penalty. If, within
fifteen working days from the receipt of the notice issued by
the Secretary the employer fails to notify the Secretary that
he intends to contest the citation or proposed assessment of
penalty (unless such failure results from mistake,
inadvertence, surprise, or excusable neglect), and no notice is
filed by any employee or representative of employees under
subsection (c) within such time, the citation and the
assessment, as proposed, shall be deemed a final order of the
Commission and not subject to review by any court or agency.
(b) If the Secretary has reason to believe that an employer
has failed to correct a violation for which a citation has been
issued within the period permitted for its correction (which
period shall not begin to run until the entry of a final order
by the Commission in the case of any review proceedings under
this section initiated by the employer in good faith and not
solely for delay or avoidance of penalties), the Secretary
shall notify the employer by certified mail of such failure and
of the penalty proposed to be assessed under section 17 by
reason of such failure, and that the employer has fifteen
working days within which to notify the Secretary that he
wishes to contest the Secretary's notification or the proposed
assessment of penalty. If, within fifteen working days from the
receipt of notification issued by the Secretary, the employer
fails to notify the Secretary that he intends to contest the
notification or proposed assessment of penalty (unless such
failure results from mistake, inadvertence, surprise, or
excusable neglect), the notification and assessment, as
proposed, shall be deemed a final order of the Commission and
not subject to review by any court or agency.
* * * * * * *
MINORITY VIEWS
H.R. 2728 weakens enforcement of OSHA by allowing employers
to drag out the imposition of penalties and the date for taking
corrective action ordered by safety officials. The principal
purpose of the Occupational Safety and Health Act (OSH Act) is
``to assure so far as possible every working man and woman in
the Nation safe and healthful working conditions'' and to
encourage the prompt abatement of safety and health hazards.
The timeframes in the Act are intended to reduce the occurrence
of occupational injury by ensuring that hazards are redressed
in a timely manner. H.R. 2728 creates an exception to those
timeframes where an employer fails to contest an OSHA citation,
pursuant to section 10(a) of the OSH Act, or fails to abate a
hazard in a timely manner, pursuant to section 10(b) of the OSH
Act.
H.R. 2728 amends the section 10(a) and (b) of the OSH Act
to provide that an employer who has failed to contest a
citation and proposed penalty (section 10(a)) or has failed to
contest a notification of failure to correct a violation
(section 10(b)) in a timely manner (within 15 working days of
receiving the notice) may still contest the citation (or
failure to correct notice) if the failure to contest in a
timely manner was due to a ``mistake, inadvertence, surprise,
or excusable neglect.'' Notwithstanding the bill's title, the
``Occupational Safety and Health Small Business Day in Court
Act,'' this bill has nothing to do with small businesses, per
se, but applies to all OSHA regulated businesses regardless of
size.
The intent of the bill is to overturn a single case in a
single circuit, Chao v. Russell P. Le Frois Builder, Inc.
(United States Court of Appeals for the Second Circuit, May 10,
2002). As the Majority Views state, Le Frois Builders is
directly contradicted by an earlier Third Circuit decision,
J.I. Hass Co. v. OSHRC, 648 F.2d 190 (3d Cir. 1981). As clearly
stated in Secretary of Labor v. Villa Marina Yacht Harbor, and
to quote from the Majority Views, ``the [Occupational Safety
and Health Review Commission] has the authority to relieve
employers from judgments.'' (See Majority Views, discussion of
the Villa Marina Yacht Case.) In fact, though the Majority
neglects to mention it, no other circuit court has ruled
similarly to Le Frois Builders. Even assuming that H.R. 2728
was appropriately drafted, an assumption we do not concede, the
need for this legislation has not been established.
The bill's proponents state that their intent is to enable
OSHRC to waive a statute of limitations in the same way that a
federal court may pursuant to Rule 60(b) of the Federal Rules
of Civil Procedure. But the bill provides no reference to Rule
60, it simply says that the Review Commission may allow an
employer to challenge an OSHA citation, even though it has been
properly served by the agency and even though the employer has
failed to challenge the citation, so long as the employer's
failure is due to ``mistake, inadvertence, surprise, or
excusable neglect.'' The best that can be said is that this
language is similar to part of Rule 60.
Rule 60 also requires that the motion for relief must be
made within a reasonable time and not more than one year after
the judgment, order, or proceeding was entered or taken. Given
the fact that hazards may not be abated and there may well be
continuing risks to safety and health, allowing a citation to
be litigated a year after it has been issued is a troubling
prospect. But H.R. 2728 does not incorporate a requirement that
the motion be filed in a timely manner nor does it impose the
one-year limitation. Without specific reference to Rule 60,
there is no assurance that the court decisions that have
otherwise circumscribed the application of that rule would be
applicable to this legislation.
The bill also waives the time limits as they apply to
employers, but not as they apply to workers. While the bill
amends subsections 10(a) and 10(b) of the OSH Act, H.R. 2728
does not amend subsection 10(c) which affords workers the right
to challenge the abatement period. If an employer fails to
respond to a complaint, this bill provides a second bite at the
apple. If an employer fails to respond to a citation for a
failure to correct a hazard, this bill provides a second bite
at the apple. But one bite is enough for workers. If they fail
to challenge the abatement period established by the Secretary
in a timely manner, well that is their tough luck.
H.R. 2728 also encourages employers to litigate citations
rather than to promptly correct health and safety hazards.
Allowing an employer to belatedly challenge a complaint also
allows an employer to delay when he or she must correct a
health or safety hazard. Under this legislation, the
responsibility to correct a health hazard may be indefinitely
delayed. Even though the employer has failed to challenge a
citation or a failure to abate notice in a timely manner, if
that failure is due to ``mistake, inadvertence, surprise, or
excusable neglect'' the employer can nevertheless challenge the
citation, does not have to abate the hazard during the
challenge period, and is not liable for having failed to abate
in the interim period. The Majority appears to equate an OSH
Act proceeding with any other typical proceeding. In fact,
however, much more is at stake. What is at stake is not merely
whether an employer will pay a monetary fine, but whether
workers will have a safe and healthy workplace or be subject to
injury, illness, and death. This legislation should be
rejected.
George Miller.
Carolyn McCarthy.
Dennis J. Kucinich.
Danny K. Davis.
Betty McCollum.
Ron Kind.
Dale E. Kildee.
Major R. Owens.
Rubin Hinojosa.
Ed Case.
Susan A. Davis.
John F. Tierney.
Tim Ryan.
Raul M. Grijalva.
Timothy Bishop.
Rush Holt.
Chris Van Hollen.
Lynn Woolsey.
Robert Andrews.
Donald M. Payne.
Denise L. Majette.
David Wu.