madam speaker , i thank the gentleman for yielding me this time . 
madam speaker , i can not help but think that all has been said that needs to be said about all four of these bills during the rules debate ; the problem is just not everybody has said it . 
if we can perhaps confine our thinking and remarks to the bills before us , we could probably get through this pretty nicely . 
and those who want to talk about things that are not germane to these bills have a great opportunity to do so during special orders . 
maybe for once we could simply talk about the four bills that we have . 
we are starting out with h.r. 739 , the occupational safety and health small business day in court act of 2005 . 
at the outset , i would like to stress that this legislation in no way diminishes the worker safety protections of the occupational safety and health act . 
i believe that . 
i think most members of our committee believe that . 
it is not our intention and i do not believe it will be the outcome of any of these bills that we consider today , most especially the one we are discussing now , h.r. 739 . 
the occupational safety and health small business day in court act amends the osh act to resolve a conflict between section 10 of the act and the federal rule of civil procedure 60 ( b ) . 
the bill is designed to make sure that an employer who fails to respond to an osha citation in a timely fashion is allowed to do so and have his or her day in court , and how reasonable of us to allow that , if the reason for missing the deadline was excusable neglect , a mistake or inadvertence . 
that is what rule 60 ( b ) allows , and that is frankly all this bill does . 
until recently , if an employer filed a late notice of contest to an osha citation , osha had limited flexibility in accepting the notice because of a conflict in the law that was written 34 years ago . 
osha would not accept late notices of contest even if the employer could prove an excusable neglect . 
the occupational safety and health review commission , however , would allow a late notice of contest to be filed under rule 60 ( b ) . 
this makes no sense . 
on december 13 , 2004 , the solicitor of labor issued a memorandum to regional solicitors announcing a change in the department 's legal interpretation . 
this change will allow the department 's attorneys to excuse late notices of citation if it can be determined that the lateness was due to an inadvertence or excusable neglect . 
the solicitor cites case law , oshrc 's longtime interpretation , and rule 60 ( b ) as the reasons for this change . 
this is the right policy in my view , and i include for the record the aforementioned memorandum . 
department of labor , washington , dc , december 13 , 2004 . 
memorandum & lt ; br & gt ; to : regional solicitors , joseph m. woodward , associate solicitor for occupational safety and health . 
this memorandum announces a change in the department 's legal interpretation of section 10 ( a ) of the occupational safety and health act of 1970 , 29 u.s.c . 
659 ( a ) . 
the department previously interpreted that provision to preclude the occupational safety and health review commission from considering an employer 's contest of an osha citation that is filed after expiration of the statutory fifteen working-day contest period , except in the unusual situation in which the limitations period has been equitably tolled . 
the commission 's position has long been that it can consider late contests if the employer establishes that its failure to meet the deadline was due to `` excusable neglect '' as that phrase is used in fed . 
r. civ . 
p. 60 ( b ) , which provides criteria for granting relief from final judgments or orders . 
despite our best efforts , our legal argument has met with only limited success . 
although the second circuit agreed with our view in chao v. russell p. lefrois builder , inc. , 291 f.3d 219 ( 2d cir . 
2002 ) , the commission has repeatedly rejected it , and this past june the third circuit ruled against us in two cases . 
george harms constr . 
co . 
v. chao , 371 f.3d 156 , 160-65 ( 3d cir . 
2004 ) ; avon contractors , 372 f.3d 171 , 174-75 ( 3d cir . 
2004 ) . 
after studying the statute and relevant case law , the department has concluded that late filed notices of contest may be considered under the conditions specified in rule 60 ( b ) . 
this change is not only consistent with the commission 's interpretation , but it is also consistent with msha 's and the federal mine safety and health review commission 's interpretation of identical language in the mine act . 
30 u.s.c . 
815 ( a ) . 
moreover , the previous interpretation had a disproportionate impact on small businesses in that these entities are more likely than larger companies to file untimely notices of contest . 
our new position avoids further needless and often futile litigation on an issue that is collateral to osha 's primary safety and health mission . 
accordingly , i am directing that all regions implement this new interpretation by no longer making the argument that the commission lacks authority to consider late notices of contest under rule 60 ( b ) . 
however , the regions should continue to argue aggressively , as they have previously and usually successfully done in the alternative , that rule 60 ( b ) relief can only be granted to employers that establish all elements of the excusable neglect standard . 
in this way , we can focus our limited resources on protecting worker safety and health rather than on litigating a collateral procedural issue . 
specific implementation guidance follows . 
if there are additional questions , please contact daniel mick , counsel for regional trial litigation , in the osh division . 
1 . 
no attorney in the office of the solicitor shall argue on behalf of the secretary that the commission lacks the authority to apply rule 60 ( b ) 's excusable neglect standard to consider late notices of contest . 
instead , sol shall implement osha 's current view that the commission has such authority . 
attorneys handling osha cases arising in new york , connecticut , or vermont , or when otherwise appropriate , shall note that the second circuit court of appeals has held to the contrary , but point out that the le frois decision made clear that the secretary 's reasonable interpretations of the osh act are entitled to judicial deference , and was rendered before osha adopted its current view . 
2 . 
where appropriate , sol attorneys shall protect the department 's interests by opposing late notices of contests on the grounds that the employer has not established `` excusable neglect '' for the late filing . 
consistent with existing law , sol attorneys shall argue that , in addition to the employer establishing that the neglect was excusable , relief can not be granted unless the employer also asserts a meritorious defense to the citation . 
see teamsters , chauffeurs , warehousemen & amp ; helpers union , local no . 
59 v. superline transp . 
co. , 953 f.2d 17 , 20 ( 1st cir . 
1992 ) ( citing cases ) . 
in addition , because rule 60 ( b ) relief is only available `` upon such terms as are just , '' in appropriate cases , such as where the employer contests only the penalty or madam speaker , all h.r. 739 would do is simply codify the solicitors ' new directive , permanently cementing this change in the osh act and ending the conflict between the osh act and rule 60 ( b ) . 
last year , the house approved this measure with bipartisan support of 251-177 , and i again urge my colleagues to vote `` yes '' on this measure . 
i know many of my democrat friends think that the labor bosses are against this , and they are right . 
the labor bosses are against something this simple , which is simply an indication to me they may not like small businesses . 
they may not want anything to occur that helps small businesses . 
the gentleman from new york ( mr. owens ) xz4003060 says this bill is not important . 
i tell members what , if you are a mom and pop in this country running a small business with three or four employees , i promise this is important to them . 
the 12 percent of the labor union members in this country , i guarantee it is important to many of them because many of them are also in small businesses . 
many of them who have spouses are in small businesses . 
this is just a decent thing to do , allow a little flexibility . 
why beat up on small businesses ? 
if you have a small business in your district , you certainly should vote `` yes '' for this one bill . 
