Chamber Urges the Vote for H.R. 2728, H.R. 2729, H.R. 2730 and H.R. 2731

May 17, 2004

TO THE MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES:

It is our understanding that the House is scheduled to vote this week on four narrow occupational safety and health reform initiatives, H.R. 2728, H.R. 2729, H.R. 2730 and H.R. 2731. On behalf of the U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses of every size, sector and region, I urge you to vote for these common sense reforms.

H.R. 2728 corrects a gross injustice under the Occupational Safety and Health Act (OSH Act) that categorically denies an employer's right to defend itself against an Occupational Safety and Health Administration (OSHA) citation if it misses a fifteenday deadline for filing a response to that citation with the Occupational Safety and Health Review Commission. This denial occurs no matter how reasonable an explanation an employer may have for missing the deadline. H.R. 2728 would simply allow a waiver of the strict deadline upon proof by the employer of "mistake, inadvertence, surprise, or excusable neglect," concepts patterned after the Federal Rules of Civil Procedure.

H.R. 2729 expands the Occupational Safety and Health Review Commission from three to five members to allow for the timely processing of cases. Past problems with filling vacancies due to delays in appointments have often resulted in paralysis at the Commission, resulting in extensive delays in case adjudication.

H.R. 2730 provides that courts must defer to the Occupational Safety and Health Review Commission with respect to questions of law, where such conclusions are reasonable. This provision would address an anomaly under current law in which the legal conclusions of OSHA, the prosecutor, must be given deference over the Commission, which is the adjudicator. In our view, this inappropriately "stacks the
deck" against the employer as OSHA, as prosecutor, is hardly an unbiased decision maker.

H.R. 2731 makes it easier for small businesses to recover attorneys' fees when they successfully defend against OSHA citations. Under current law, an employer may only recover attorneys' fees and costs incurred in defending against an OSHA citation under the Equal Access to Justice Act (EAJA), which permits small employers to recover fees in certain circumstances. Unfortunately, however, EAJA only allows recovery if OSHA fails to show that it was substantially justified for issuing the citation—a question of fact and law that the employer must once again re-litigate after it has already proven its
innocence in the underlying case. The OSH Act's many technical and complex requirements have made it fairly easy for OSHA to come up with creative arguments justifying its actions. Therefore, H.R. 2731 allows small employers to recover attorneys' fees if, and only if, the employer has successfully defended against a citation without going through the expensive process of re-litigating the case. This is a special rule only for employers with 100 or less employees, while EAJA applies to employers with 500 or less.

The U.S. Chamber testified in favor of these narrow reform initiatives during a hearing held on June 17, 2003, and we urge your support for each of these bills. We will consider including votes on or related to H.R. 2728, H.R. 2729, H.R. 2730 and H.R. 2731 as possible key votes for our annual How They Voted scorecard.

Sincerely,

R. Bruce Josten
Executive Vice President, Government Affairs
U.S. Chamber of Commerce