Document 2NB9nQBgBbqY2J6QeeRyqO7jg

S-6fi 35:1101 RULFS OF PRACTICE FOR VARIANCES-EXEMPTIONS UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT Code of Federal Regulations, Title 29, Chapter XVII, Part 1905, 36 FR 12290, June 30, 1971) Title 29--LABOR - Chapter XVII--Occupational Safety and Health Administration, Depart ment of Labor PART 1905--RULES OF PRACTICE FOR VARIANCES, LIMITATIONS, VARIA TIONS, TOLERANCES, AND EXEMP TIONS UNDER THE WILLIAMSSTEIGER OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 Implementation of Williams-Steiger Occupational Safety and Health Act of 1970 Sec1005.1 1905.2 1905.3 1905.4 1905.5 1905 6 1905.7 Subporf A--Gtnerol Purpose and scope. Definitions. Petitions for amendments to this part. Amendments to this part. Effect of variances. Public notice of a granted variance, limitation, variation, tolerance, or exemption. Form of documents; subscription; copies. Subport &--Applications for Variances, Limita tions, Variations, Tolerances, Exemptions and Other Relief 1905.10 1905 11 1905 12 3905,13 1905 14 1905.15 1905.16 Variances and other relief under section 6 b) (6) (A). Variances and, other relief under section *5*d), Llmitatit .s, variations, tolerances, or exemptions under section 16. Modification, revocation, and re newal of rules or orders. Action on applications. Requests for hearings on applica tions. Consolidation of proceedings. 1905.20 1905 21 1905 22 1905 23 1905 24 1905 25 1905 26 1905.27 1905 2B 1905 29 1905.30 Subpart C--Hearings Notice of hearing. Manner of service. Hearing examiners: powers and duties, Prehearing conferences. Consent findings and rules or orders. Discovery. Hearings. Decisions of hearing examiners. Exceptions. Transmission of record. ,, Decisions of the Assistant Secretary. Subpart D--Summary Decisions 1905 40 Motion for summary decision, 1905.41 Summary decision. Subpart E--Effect of Initial Decisions 1905 50 Effect of appeal of a hearing exam iner's decision. 1905,31 Finality for purposes of Judicial review. Authority: The provisions of this Part 1905 issued under sees. 6, 8.16, 84 Stat. 1593, 1598, 1606; 29 U,S.r P" P7. 605. Subpart A--General 1903.1 I'urpo<c and scope. ta) This part contains rules of prac tice for administrative proceedings (1) to grant variances and other relief under sections 6'b)<6)(A) and 6(d) of the Williams-Steiger Occupational Safely and Health Act of 1970, and (2) to pro vide limitations, variations, tolerances, and exemptions under section 16 of the Act. ib> These rules shall be construed to secure a prompt and just conclusion of proceedings subject thereto. (ci The rules of practice in this part do not apply to the granting of variances under section 6(b) (6) (C). Whenever ap propriate, the procedure for granting such a variance shall be published in the Federal Register. 1903.2 Definitions. As used in this part, unless the context clearly requires otherwise-- (a) "Act" means the Williams-Steiger Occupational Safety and Health Act of 1970. (b) "Secretary" means the Secretary of Labor. (c) "Assistant Secretary" means the Assistant Secretary of Labor for Occu pational Safety and Health. (d) "Person" means an individual, partnership, association, corporation, business trust, legal representative, an organized group of individuals, or an agency, authority, or instrumentality of the United States or of a State. (e) "Party" means a person admitted to participate in a hearing conducted in accordance with Subpart C of this part. An applicant for relief and any affected employee shall be entitled to be named parties. The Department of Labor, rep resented by the Office of the Solicitor, shall be deemed to be a party without the necessity of being named. t f) "Affected employee" means an em ployee who would be affected by the grant or denial of a vaiiance, limitation, variation, tolerance, or exemption, or any one of his authorized representatives, such as lus collective bargaining agent. 1903.3 Petitions for aiiimtlntcnl'i to lliL part. Any person may at any tunc petition the Assistant Secretary in writing to re vise, amend, or revoke any provisions of this part. The petition should set forth either the terms or the substance of the rule desired, with a concise statement of the reasons therefor and the effects thereof. 5 1903.4 Amendments to this part. The Assistant Secretary may at any time revise, amend, or revoke any pro visions of this part, on his own motion or upon the written petition of any person, 1903.3 Effect of variances. All variances granted pursuant to this part shall have only future effect. In his discretion, the Assistant Secretary may decline to entertain an application for a variance on a subject or issue concern ing which a citation has been issued to the employer involved and a proceeding on the citation or a related issue con cerning a proposed penalty or period of abatement is pending before the Occu pational Safety and Health Review Com mission until the completion of such proceeding, 1905.6 Public notice of n granted variance, limitation, variation, toler ance, or exemption. Every final action granting a variance, limitation, variation, tolerance, or ex emption under this part shall be pub lished in the Federal Register. Every such final action shall specify the alter native to the standard involved which the particular variance permits. 1903.7 Form of documents; subscrip tion ; copies. (a) No particular form is prescribed for applications and other papers which may be filed in proceedings under this part. However, any applications and other papers shall be clearly legible. An original and six copies of any applica tion or other papers shall be filed. The original shall be typewritten. Clear car bon copies, or printed or processed copies are acceptable copies. (b> Each application or other paper which is filed m proceedings under tliis part shall be subscribed by the person filing the same or by his attorney or other authorized representative. Subpart B--Applications for Var iances, Limitations, Variations, Tol erances, Exemptions and Other Relief 1905,10 Variance;, and other relief under -relitm 6(b) (6) (A). Copyright 1974 by The Bureau of National Affairs, Inc, IScc. 1905,101 5 ASI 00008945 l 1 35:1102 r* REFERENCE FILE () Application for variance. Any em ployer, or class of employers, desiring a variance lrom a standard, or portion thereof, authorized by section 6(b)(6) (A) of the Act may file a written appli cation containing the information speci fied in paragraph <b> of this section with the Assistant Secretary for Occu pational Safety and Health, U.S. De partment of Labor. Washington, D.C, 20210. (bt Contents. An application filed pur suant to paragraph (a) of this section shall include: (1) The name and address of the applicant: (2) The address of the place or places of employment involved; (3) A specification of the standard or portion thereof from which the applicant seeks a variance; (4) A representation by the applicant, supported by representations from quali fied persons having first-hand knowledge of the facts represented, that he is un able to comply with the standard or por tion thereof by its effective date and a detailed statement of the reasons therefor; (5) A statement of the steps the ap plicant has taken and will take, with specific dates where appropriate, to pro tect employees against the hazard cov ered by the standard; () A statement of when the appli cant expects to be able to comply with the standard and of what steps he has taken and will take, with specific dates where appropriate, to come into compli ance with the standard; (7) A statement of the facts the appli cant would show to establish that (l) the applicant is unable to comply with a standard by its effective date because of unavailability of professional or tech nical personnel or of materials and equipment needed to come into compli ance with the standard or because neces sary construction or alteration of facili ties cannot be completed by the effective date: (ii) he is taking all available steps to safeguard his employees against the hazards cotered by the standard; and Ciii) he has an effective program for coming into compliance ivith the stand ard as quickly as practicable; (8) Any request for a hearing, as pro vided in this part; (9) A statement that the applicant has informed his affected employees of the application by giving a copy thereof to their authorized representative, post ing a statement, giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted, and by other appropriate means; and (10) A description of how affected em ployees have been informed of tlie ap plication and of their right to petition the Assistant Secretary for a hearing. (c) Interim order.-- (1) Application. An application may also be made for an interim order to be effective until a de cision is rendcied on the application for tlie variance filed previously or concur rently. An application for an interim order may include statements of fact and arguments as to why the order should be granted. Tire Assistant Secretary may rule ex parte upon the application, (2* Notice of denial of application. If an application filed pursuant to subpara graph (1) of this paragraph is denied, the applicant shall be given prompt no tice of the denial, which shall include, or be accompanied by, a brief statement of the grounds therefor, (3) Notice of the grant of an interim order. If an interim order is granted, a copy of the order shall be served upon the applicant for the order and other paries and the terms of the order shall be published in the Federal Register. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of an application for a variance. 1905.11 Variance! and other relief under section 6(d). (a) Application for variance. Any em ployer, or class of employers, desiring a variance authorized by section 6(d) of the Act may file a written application containing the information specified in paragraph (b) of this section, with the Assistant Secretary for Occupational Safety and Health, U.S, Department of Labor, Washington, D.C, 20210. (b) Contents. An application filed pur suant to paragraph (a) of this section shall include: (1) The name and address of the applicant: (2) Tlie address of the place or places of employment involved; (3) A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the applicant; (4) A statement showing how the con ditions, practices, means, methods, op erations, or processes used or proposed to be used would provide employment and places of employment to employees which are as safe and healthful as those required by the standard from which a variance is sought; <5) A certification that the applicant has informed his employees of the appli cation by (i) giving a copy thereof to their authorized representative; (ii) posting a statement giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted (or in lieu of such sum mary, the posting of the application it self) ; and (ill) by other appropriate means; (6) Any request for a hearing, as pro vided in this part: and (7) A description of how employees have been informed of tlie application and of their right to petition the Assist ant Secretary for a hearing. (c) Interim, order.--(1) Application. An application may also be made for an interim order to be effective until a de cision is rendered on tlie application for the variance filed previously or con currently. An application for an interim order may include statements of fact and arguments as to why the older should be granted. The Assistant Secre- tary may rule ex parte upon the application. (2) Notice of denial of application. If an application filed pursuant to subparagraph (1) of this paragraph is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied by; a brief statement of the grounds therefor. (3) Notice of the grant of an interim order. If an interim order Is granted, a copy of the order shall be served upon the applicant for the order and other parties, and the terms of the order shall be published in the Federal Register. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of an application for a variance. 1903.12 Limitations, variations, toler ances, Or exemptions. (a) Application. Any person, or class of persons, desiring a limitation, varia tion, tolerance, or exemption authorized by section 16 of the Act may file an application containing the information specified in paragraph (b) of tills sec tion, with the Assistant Secretary for Occupational Safety and Health, VS, Department of Labor, Washington, D.C, 20210. (b) Contents. An application filed pursuant to paragraph (a) of this sec tion shall include: (1) The name and address of the applicant; (2) The address of the place or places of employment involved; (3) A specification of the provision of the Act to or from which the applicant seeks a limitation, variation, tolerance, or exemption. (4) A representation showing that the limitation, variation, tolerance, or ex emption sought Is necessary and proper to avoid serious impairment of the na tional defense; (5) Any request for a hearing, as pro vided in this part; and (6) A description of how employees have been informed of the application and of their right to petition the Assist ant Secretary for a hearing, (c) Interim order--(1) Application. An application may also be made for an interim order to be effective until a de cision is rendered on the application for the limitation, variation, tolerance, or exemption filed previously or concur rently. An application for an interim order may include statements of fact and arguments as to why the order should be granted. The Assistant Secretary may rule ex parte upon the application. (2) Notice of denial of application. If an application filed pursuant to subpara graph (1) of this paragraph is denied, the applicant shall be given prompt no tice of the denial, which shall include, or be accompanied, by a brief statement of the grounds therefor, (3) Notice of the grant of an interim order. If an interim order is granted, a copy of the order shall be served upon the applicant for the order and other parties, and the terms of the order shall be published In the Federal Register. It shall be a condition of the order that Occupotional Sofety & Health Reporter (Sec. 1905.12(c)(3)] 6 ASI 00008946 RULES OF PRACTICE FOR VAF |4CES :t S -66 35:1103 A the affected employer shall give notice application shall be given to the copy of a notice of hearing served pur thereof to affected employees by the same applicant. suant to paragraph (a) of this section means to be used to inform them of an (3) A notice of denial shall Include, or shall be referred to the hearing examiner application for a variance. be accompanied by, a brief statement designated therein, together with the \ 1905,13 Mollification, rc\or;ilin, ant! rtnc^nl of rules or orders. of the grounds for the denial, (4) A denial of an application pur suant to this paragraph shall be without original application and any written re quest for a hearing thereon filed pursuant to this part. (a) Modification or revocation. (1) An prejudice to the filing of another affected employer or an affected em application. 1905.21 Manner of service. ployee may apply in writing to the Assistant Secretary of Labor for Occu pational Safety and Health for a modifi cation or revocation of a rule or order issued under section 6(b)(6)(A), 6(d), or 16 of the Act. The application shall contain: (1) The name and address of tire applicant: (11) A description of the relief which Is sought; (ill) A statement setting forth with particularity the grounds for relief; (iv) If the applicant Is an employer, a certification that the applicant has in formed his affected employees of the application by: (a) Giving a copy thereof to their au thorized representative; (b) Adequate applications. (1) If an application has not been denied pur suant to paragraph (a) of this section, the Assistant Secretary shall cause to be published in the Federal Register a notice of the filing of the application. (2) A notice of the filing of an appli cation shall include: (i) the terms, or an accurate summary, of the applica tion; (li) a reference to the section of the Act under which the application has been filed; (lii) an invitation to inter ested persons to submit within a stated period of time written data, views, or arguments regarding the application; and (iv) Information to affected em ployers and employees of any right to request a hearing on the application. Service of any document upon any party may be made by personal delivery of, or by mailing, a copy of the document to the last known address of the party. The person serving the document shall certify to the manner and the date of the service. 1905.22 Hearing examiners; power* and Julies. (a) Powers. A hearing examiner desig nated to preside over a hearing shall have all powers necessary or appropriate to conduct a fair, full, and impartial hear ing, Including the following: (1) To administer oaths and affirma tions; (2) To rule upon offers of proof and receive relevant evidence; (t Posting at the place or places where notices to employees are normally posted, a statement giving a summary of the application and specifying where a copy of the full application may be ex amined (or. in lieu of the summary, post ing the application itself); and (c) Other appropriate means. (v) If the applicant Is an affected em ployee, a certification that a copy of the application has been furnished to the employer; and (vi) Any request for a hearing, as pro vided in this part. (2) The Assistant Secretary may on his own motion proceed to modify or revoke a rule or order issued under sec tion 6(b)(6)(A). 6(d), or 16 of the Act. In such event, the Assistant Secretary shall cause to be published in the Fed eral Register a notice of his intention, affording Interested persons an op 1905.15 Requests for.hearings on ap plications. (a) Request for hearing. Within the time allowed by a notice of the filing of an application, any affected employer or employee may file with the. Assistant Secretary, In quadruplicate, a request for a hearing on the application. (b) Contents of a request for a hear ing, A request for a hearing filed pur suant to paragraph (a) of this section shall Include: (1) A concise statement of facts show ing how the employer or employee would be affected by the relief applied for; (2) A specification of any statement or representation In the application which' is denied, and a concise summary of the evidence that would be adduced in support of each denial; and (3) Any views or arguments on any issue of fact or law presented, portunity to submit written data, views, 1905.16 Consolidation of proceedings. or arguments regarding the proposal and informing the affected employer and em ployees of their right to request a hear ing, and shall take such other action as may be appropriate to give actual notice to affected employees. Any request for The Assistant Secretary on his own motion or that of any party may con solidate or contemporaneously consider two or more proceedings which involve the same or closely related issues. (3) To provide for discovery and to determine its scope; (4) To regulate the course of the hearing and the conduct of the parties and their counsel therein; (5) To consider and rule upoti proce dural requests; (6) To hold conferences for the set tlement or simplification of the issues by consent of the parties; (7) To make, or to cause to be made, an inspection of the employment or place of employment involved. (8) To make decisions in accordance with the Act, this part, and the Admin istrative Procedure Act <5 U.S.C. Ch. 5); and (9) To take any other appropriate ac tion authorized by the Act, this part, or the Administrative Procedure Act. (b) Private consultation. Except to the extent required for the disposition of ex parte matters, a hearing examiner may not consult a person or a party on any fact at issue, unless upon notice and op portunity for all parties to participate. (c) Disqualification. (1) Whenahearlng examiner deems himself disqualified to preside over a particular hearing, he shall withdraw therefrom by notice on a hearing shall include a short and plain statement of: Subpart C--Hearings the record directed to the Chief Hearing Examiner, (1) How the proposed modification or 1905.20 Notice of hearing. (2) Any party who deems a hearing I revocation would affect the requesting party; and (li) What the requesting party would seek to show on the subjects or issues involved. (b) Renewal. Any final rule or order Issued under section 6(b) (6) (A) or 16 of the Act may be renewed or extended as permitted by the applicable section and in the manner prescribed for its issuance. (a) Service. Upon request for a hear ing as provided in this part, or upon his own initiative, the Assistant Secretary shall serve, or cause to be served, a reasonable notice of hearing. (b) Contents. A notice of hearing served under paragraph (a) of this section shall include: (1) The time, place, and nature of the hearing; I903.l t Action on applications. (2) The legal authority under which (a) Defective applications. (1) If an the hearing is to be held; application filed pursuant to 5 1905.10(a), 5 1905.11(a). 5 1905.12(a), or (3) A specification of issues of fact and law; and 5 1905.13 does not conform to the appli (4) A designation of a hearing exam cable section, the Assistant Secretary iner appointed under 5 U.S.C, 3105 to may deny the application. preside over the hearing. examiner for any reason to be disquali fied to preside, or to contmue to preside, over a particular hearing, may file with the Chief Hearing Examiner of the De partment of Labor a motion to disqualify and remove the hearing examiner, such motion to be supported by .ffidavlts set ting forth the alleged grounds for dis qualification. The Chief Hearing Exam iner shall rule upon the motion. (d) Contumacious conduct; failure or refusal to appear or obey the rulings of a presiding hearing examiner, (1) Con tumacious conduct at any hearing before the hearing examiner shall be ground for exclusion from the hearing. (2) If a witness or a party refuses to answer a question after being directed (2) Prompt notice of the denial of an (c) Referral to hearing examiner. A to do so. or refuses to obey an order to Copyright 1974 by Tho Bureau of National Affai rs, Inc. [Sec. 1905.22(d)(2)) 7 ASI 00008947 I 35:1104 REFERENCE FILE provide or permit discovery, the hearing examiner may make such orders with regard to the refusal as are just and appropriatc. including an order denying the application of an applicant or regu lating the contents of the record of the hearing. (e) Referral to Federal Rules of Civil Procedure. On any procedural question not regulated by this part, the Act, or the Administrative Procedure Act, a hear ing examiner shall be guided to the ex tent practicable by any pertinent provisions of the Federal Rules of Civil Procedure. 1905,23 Prehearing conferences. (a) Convening a conference. Upon his own motion or the motion of a party, the hearing examiner may direct the parties or their counsel to meet with him for a conference to consider: (1) Simplification of the Issues; (2) Necessity or desirability of amendments to documents for purposes of clarification, simplification, or limitation; (3) Stipulations, admissions of fact, and of contents and authenticity of documents; (4) Limitation of the number of par ties and of expert witnesses; and (5) Such other matters as may tend to expedite the disposition of the pro ceeding, and to assure a just conclusion thereof. (b) Record, of conference. The hear ing examiner shall make an order which recites the action taken at the confer ence, the amendments allowed to any documents which have been filed, and the agreements made between the pa ties as to any of the matters considere and which limits the issues for hearir to those not disposed of by admissions or agreements; and such order when entered controls the subsequent course of the hearing, unless modified at the hearing, to prevent manifest Injustice. 1903.2-1 Consent findings and rules or orders. (a) General. At any time before the reception of evidence in any hearing, or during any hearing a reasonable op portunity may be afforded to permit ne gotiation by the parties of an agreement containing consent findings and a rule or order disposing of the whole or any part of the proceeding. The allowance of such opportunity and the duration thereof shall be in the discretion of the presid ing hearing examiner, after considera tion of the nature of the proceeding, the requirements of the public Interest, the representations of the parties, and the probability of an agreement which will result in a just disposition of the issues involved. (b) Contents. Any agreement contain ing consent findings and rule or order disposing of a proceeding shall also provide: (1) That the rule or order shall have the same force and effect as if made after a full hearing; (2) That the entire record on which any rule or order may be based shall consist solely of the application and the agreement; (3) A waiver of any further proce dural steps before the hearing examiner and the Assistant Secretary; and (4) A waiver of any right to challenge or contest the validity of the findings and of the rule or order made in accordance with the agreement. fc) Submission. On or before the expiration of the time granted for nego tiations, the parties or their counsel may: (1) Submit the proposed agreement to the presiding hearing examiner for his consideration; or (2) Inform the presiding hearing ex aminer that agreement cannot be reached. (d) Disposition. In the event an agreement containing consent findings and rule or order is submitted within the time allowed therefor, the presiding hearing examiner may accept such agreement by issuing his decision based upon the agreed findings. 1905.25 Discovery. <a) Depositions. (1) For reasons of unavailability or for other good cause shown, the testimony of any witness may be taken by deposition. Depositions may be taken orally or upon written inter rogatories before any person designated by the presiding hearing examiner and having power to administer oaths. (2) Application. Any party desiring to take the deposition of a witness may make application in writing to the pre siding hearing examiner, setting forth: (i) the reasons why such deposition should be taken; (ii) the time when, the place where, and the name and post office address of the person before whom the deposition is to be taken: (iii) the name and address of each witness; and (lvl the subject matter concerning which each witness is expected to testify. (3) Notice. Such notice as the presid ing hearing examiner may order shall be given by the party taking the deposition to every other party. (4) Taking and receiving in evidence. Each witness testifying upon deposition shall be sworn, and the parties not call ing him shall have the right to crossexamine him. The questions propounded and the answers thereto, together with all objections made, shall be reduced to writing, read to the witness, subscribed by him, and certified by the officer before whom the deposition is taken. There after, the officer shall seal the deposition, with two copies thereof, in an envelope and mail the same by registered mail to the presiding hearing examiner. Subject to such objections to the questions and answers as were noted at the time of tak ing the deposition and would be valid were the witness personally present and testifying, such deposition may be read and offered in evidence by the party taking it as against any party who was present, represented at the taking of the deposition, or who had due notice thereof. No part of a deposition shall be admitted in evidence unless there is a showing that the reasons for the taking of the deposition in tire first instance exist at the time of hearing. (b) Other discovery. Whenever appro priate to a just disposition of any issue in a hearing, the presiding hearing exam iner may nlloiv discovery by any other appropriate procedure, sucli as by writ ten interrogatories uixrn a party, pro duction of documents by a party, or by entry for inspection of the employment or place of employment involved. 1905.20 Hearing's. (al Order of proceeding. Except as may be ordered otherwise by the presid ing hearing examiner, the party appli cant for relief shall proceed first at a hearing. b) Burden of proof. The party appli cant shall have the burden of proof. (c) Evidence--(1) Admissibility. A party shall be entitled to present his case or defense by oral or documentary evi dence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true dis closure of the facts. Any oral or docu mentary evidence may be received, but a presiding hearing examiner shall ex clude evidence which is irrelevant, im material, or unduly repetitious. (2) Testimony of witnesses. The testi mony of a witness shall be upon oath or affirmation administered by the presid ing hearing examiner. (3) Objections. If a party objects to the admission or rejection of any evi dence, or to the limitation of the scope of any examination or cross-examina tion, or to the failure to limit such scope, he shall state briefly the grounds for such objection. Rulings on all objections shall appear in the record. Only objections made before the presiding hearing exam iner may be relied upon subsequently in a proceeding. (4) Exceptions. Formal exception to an adverse ruling is not required. (d) Official notice. Official notice may be taken of any material fact not appear ing in evidence in the record, which is among the traditional matters of judi cial notice or concerning which the De partment of Labor by reason of its func tions is presumed to be expert; Provided, That the parties shall be given adequate notice, at the hearing or by reference in the presiding hearing examiner's deci sion, of the matters so noticed, and shall be given adequate opportunity to show the contrary, <e) Transcript. Hearings shall be stenographically reported. Copies of the transcript may be obtained by the parties upon written application filed with the reporter, and upon the payment of fees at the rate provided in the agreement with the reporter. 1903.27 Decisions of hearing exam* iners. fa' Proposed findings of fact, con clusions, and rules or orders. W.Jiin 10 days after receipt of notice that the transcript of the testimony lias been filed or such additional time as the presiding hearing examiner may allow, each party may file with the hearing examiner pro posed findings of fact, conclusions of law, and rule or order, together with a sup porting brief expressing tire reasons for such pioposals. Such proposals and brief shall be served on all other parties, and shall refer to all portions of the record &.Occupational Safety Health Reporter [Sec. 1905.27(a)) 8 ASX 00008948 RULES OF PRACTICE FOR VAR liCES S-66 35:1105 and to all authorities relied upon in sup port of each proposal. (b) Decision of the hearing examiner. Witiiin a reasonable time after the time allowed for the filing of proposed find ings of fact, conclusions of law, and rule or order, the presiding hearing exam iner shall make and serve upon each party his decision, which shall become final upon the 20th day after service thereof, unless exceptions are filed there to, as provided in 1905.28. The decision of the hearing examiner shall include (1) a statement of findings and conclusions, with reasons and bases therefor, upon eacii material issue of fact, law, or dis-~ cretion presented on the record, and (2) the appropriate rule, order, relief, or denial thereof. The decision of the hear ing examiner shall be based upon a con sideration of the whole record and shall state all facts officially noticed and re lied upon. It shall be made on the basis of a preponderance of reliable and pro bative evidence. may affirm, modify, or set aside, in whole or part, the findings, conclusions, and the rule or order contained in the deci sion of the presiding hearing examiner, and shall include a statement of reasons or bases for the actions taken on each exception presented. Subpart --Summary Decisions 1905.40 Motion for summary drei-ion. (a) Any party may, at least 20 days before the date fixed for any hearing under Subpart C of this part, move with or without supporting affidavits for a summary decision in his favor on all or any part of the proceeding. Any other party may, within 10 days after service of the motion, serve opposing affidavits or countermove for summary decision. The presiding hearing examiner may, in his discretion, set the matter for argu ment and call for the submission of 1905.28 Exceptions. briefs. Within 20 days after service of a de <b) The filing of any documents under cision of a presiding hearing examiner, paragraph (a) of this section shall be any party may file with the hearing ex with the hearing examiner, and copies aminer written exceptions thereto with of any such documents shall be served in supporting reasons. Such exceptions shall accordance with 5 1905.21. refer to the specific findings of fact, con (c) The hearing examiner may grant clusions of law, or terms of the rule or such motion if the pleadings, affidavits, order excepted to, the specific pages of material obtained by discovery or other transcript relevant to the suggestions, wise obtained, or matters officially no and shall suggest corrected findings of ticed show that there is no genuine issue fact, conclusions of law, or terms of the as to any material fact and that a party rule or order. Upon receipt of any excep is entitled to summary decision. The tions, the hearing examiner shall fix a hearing examiner may deny such motion time for filing any objections to the ex whenever the moving party denies access ceptions and any supporting reasons. to information by means of discovery to 1905.29 Transmission of record. a party opposing the motion. (d) Affidavits shall set forth such facts If exceptions are filed, the hearing ex as would be admissible in evidence in a aminer shall transmit the record of the proceeding subject to 5 U.S.C. 556 and proceeding to the Assistant Secretary for 557 and shall show affirmatively that the review. The record shall include: the ap affiant is competent to testify to the plication, any request for hearing there matters stated therein. When a motion on, motions and requests filed in written for summary decision is made and sup form, rulings thereon, the transcript of ported as provided in this section, a the testimony taken at the hearing, to party opposing the motion may not rest gether with the exhibits admitted in evi upon the mere allegations or denials of dence, any documents or papers filed in his pleading; his response must set forth connection with prehearing conferences, specific facts showing that there is a such proposed findings of fact, conclu genuine issue of fact for the hearing, sions of law, rules or orders, and sup (e) Should it appear from the affi porting reasons, as may have been filed, davits of a party opposing the motion the hearing examiner's decision, and that he cannot for reasons stated pre such exceptions, statements of objec sent by affidavit facts essential to justify tions. and briefs in support thereof, as his opposition, the hearing examiner may may have been filed in the proceeding. deny the motion for summary decision or may order a continuance to permit affi 1905.30 Decision of llie As-i-l.tMt '-re-, rclary. davits to be obtained or discovery to be had or may make such other order as is If exceptions to a decision of a hear just. ing examiner are taken pursuant to (f) The denial of all or any part of a 5 1905.28, the Assistant Secretary shall motion for summary decision by the upon consideration thereof, together hearing examiner shall not be subject to with the record references and autnoii- interlocutory appeal to the Assistant ties cited in support thereof, apd any ob Secretary unless the hearing examiner jections to exceptions and supporting certifies in writing (1) that the ruling reasons, make fiis decision. The decision involves an important question of law or policy as to which there is substantial ground for difference of opinion, and (2) that an immediate appeal from the rul ing may materially advance the ultimate termination of the proceeding. The al lowance of such an interlocutory appeal shall not stay the proceeding before the hearing examiner unless the Assistant Secretary shall so order. 1905.41 Summary decision. (a) No genuine issue of material fact. f 1) Where no genuine issue of a material fact is found to have been raised, the hearing examiner may issue an initial decision to become final 20 days after service thereof, unless, within such pe riod of time any party lias filed written exceptions to the decision. If any timely exception is filed, the hearing examiner shall fix a time for filing any objections to the exception and any supporting rea sons. Thereafter, the Assistant Secretary, after consideration of the exceptions and Tiny supporting briefs filed therewith and of any objections to the exceptions and any supporting reasons, may issue a final decision. (2) An initial decision and a final de cision made under this paragraph shall lclude a statement of-- (il findings and conclusions, ana the reasons or bases therefor, on all issues presented; and (ii) the terms and conditions of the rule or order made. (3) A copy of an initial decision and a final decision under this paragraph shall be served on each party. (b) Hearings on issues of fact. Where a genuine material question of fact is raised, -the hearing examiner shall, and in any other case he may, set the case for an evidentiary hearing in accordance with Subpart C of this part. Subpart E--Effect of Initial Decisions 1903.50 Effect of appeal of a hearing examiner's decision. A hearing examiner's decision under this part shall not be operative pending a decision on appeal by the Assistant Secretary. 190.j,51 Finality for purposes of ju dicial review. Only a decision by the Assistant Secre tary shall be deemed final agency action for purposes of judicial review. A deci sion by a hearing examiner which be comes final for lack of appeal is not deemed final agency action for purposes of 5 U.S.C. 704. Signed at Washington, D.C , this 22d day of June 1971, J. D. Hodcson, Secretary of Labor, [PR Doc 71-9179 Filed C-29-71,8,45 am] Copyright ... 1974 by The Bureau of Notional Affai S, Inc. [Sec. 1905.51) 9 ASI 00008949