29–006 

108TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 2d Session 108–487 

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, 

2

1See 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’’). 

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

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 

3

2Federal 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. § 60(b). 3See 29 U.S.C. § 657(a). 4See 29 U.S.C. § 658(a). 5See 29 U.S.C. § 659(a). 6Generally, 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). 7See 29 U.S.C. § 659(c). 8 29 U.S.C. § 659(a). 

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. 

§ 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. 

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

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

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 

4

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). 10 29 U.S.C. § 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. § 659(a).

judgment is entered against the employer, from which it has no appeal.9

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. 

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 ProVerDate jul 14 2003 05:04 May 14, 2004 Jkt 029006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR487.XXX HR487
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12See 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.’’ 13See 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)). 14 291 F.3d 219 (2d Cir. 2002). 15Testimony of Arthur G. Sapper, Esq., Hearing on H.R. 1583, at 58. 16See 291 F.3d at 225. 

cedure 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. 

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: 

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

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.’’

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 OccuVerDate jul 14 2003 05:04 May 14, 2004 Jkt 029006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR487.XXX HR487
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17Testimony of Arthur G. Sapper, Hearing on H.R. 1583, at 58. 18Secretary 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. 20Decision, Secretary of Labor v. Villa Marina Yacht Harbor, OSHRC Docket No. 01–0830 

(2003), at 2–3. 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). 

pational 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

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: 

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

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 timely notice 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

7

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. 24See 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). 

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

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. 

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. 

8

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.

9


Insert offset folio 9 here HR487.001
10

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. 

11

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 

12

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 

13

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 

14

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.

Æ