Document 4VOEg8jVrpo3Zy7kKJOoG001

RULES AND REGULATIONS Regulations, Is hereby amended by add ing thereto a near part designated Part IMS. The new Part 1905 contains the rules of practice fer administrative pro ceedings for granting variances from oc cupational safety and health standards under certain provisions of section C of the Act, and rules of practice for provid ing limitations, variations, tolerances, and exemptions under section 1G of the Act. The rules of pracJce shall be effective upon publication In the FmeiuL Regis ter (G-30-71). However, Interested per sons are encouraged to petition for any amendments to the rules which they may consider appropriate. The new Part 1805 reads as follows: Subport A--General Sec. 1905.1 1905.2 1905a 1905.4 1905.5 1905.fi 1905.7 Purpose end scope. Definitions. Petitions lor amendment* to this port. Amendments to this part. Effect of variances. Public notice of a grta id variance, limitation, variation, tolerance, or exemption. Poem of documents: eubscrlptlon; copies. Swbpcil fi--AppHcctiens far Variancei, Limita- Horn, Verialianr, Tctercncei, Exemptions end Other Relief 1905.10 variances and other relief under section 8(b)(0) (A). 1905.11 Variances and other relief under section G(d). 1905.12 limitations, variations, tolerances, or exemptions under section 18. 1905.13 Modification, revocation, and re newal of rules or orders. 1905.14 Action on applications. 1905.19 Requests for hearings on applica tions. 1905.10 Consolidation of proceedings. ^ Title 23--LABOR Chapter XVII--Occupational Safofy and Health Administration, Depart ment of Labor PART 1905--RULES OF PRACTICE FOR VARIANCES, LIMITATIONS, VARIA TIONS, TOLERANCES, AND EXEMP TIONS UNDER THE WILLIAMSSTEIGER OCC^ATIONU SAFETY AND HEALTH ACT OF 1970 Subpart C--Hearings 1905.20 Notice of hearing. 1005.21 Manner of service. 1905.22 Hearing examiners; powers and duties. 1905.23 Prehearing conferences. 1905.24 Consent findings and m'es or orders. 1905.25 Discovery. 190526 Hearings. 190527 Decisions of hearing examiner^. 1905.28 Exceptions. 1905.29 Transmission of record. 1905.30 Decisions of the Assistant Secretary. Subpart D--Summary Dccitloiu 1905.40 Motion for summary decision. 1905.41 Summary decision. Subpart E--Cftrcf of Initial Decision* 1905.50 Effect of appeal of a hearing exam iner's decision. 1905.51 Finality for purposes of Judicial review. AtrritoaiiY: The provisions of this Tart 1905 Issued under secs. 3, A 16. 94 St.*t. 1593, 1328, 1600; 29 U S.C. 655, 657. 665. Implementation of Williams-Steiner Occupational Safety and Health Act of 1970 Puiiinnt to sections 6, 8. and 1G of tit- Wiiliams-Stc iaer tv on.; I-].-. : b ,vt of )?'< l.V.iC, and 1600; 2a U.S.C. C35, u.,7, fu .1. Chapter XVII of Title 29, Cotie of Federal Subpart A--General $ 1903.1 Purpose and scope. fa) This part contains rules ot praalin for administrative proceedings <1) In u* vaM.'iV'.' raid other rch- f i:r 'I. :<( !ion.-: G'b)iG.i(A) and G(d) of-ihe wmiam.-Steiger Occupational Safety FEDERAL REGISTER, VOL 36, NO. 126--WEDNESDAY, JUNE 30, 1071 ASI-PR 0003520 RUIES AND REGULATIONS 12201 Health Act of 1970. and (2) to pro pattonal Safety and Health Review Com vide limitations, variations, tolerances, mission until the completion of such ,:id cremptions under section 10 of the proceeding. \ct, i})) nitre rules shall he construed to atcure a prompt and just conclusion of piocccdinss subject tliereto. <c> The rules of practice In tills part do not apply to the grantinar of variances under section 6(b) (6) <C). Whenever ap propriate, the procedure for granting molt a variance shall he published In the federal Register. 1903.2 Definition*. As used in tills part, unless the context clearly requires otherwise-- (a) "Act" means the Williams-Stciger Occupational Safety and Health Act of 1970. <b) "Secretary" means the Secretary of Labor. (o) "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 croup of individuals, or an agency, authority, or instrumentality of the United States or of a State. (e> "Party" menus a person admitted 1905.6 O'Hire i>f n gi Ruled 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 ctandarr. involved which the particular variance permits. 1905.7 Fonn of document*; subscrip tion ; copies. (a) No particular fonn Is prescribed for applications and other papers which may be filed in proceedings under tliis 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 in proceedings under this part shall be subscribed by the person filing the same or by Ids attorney or other authorized representative. lo participate In a hearing conducted In accordance with Subpart C of tills part. An applicant for relief and any affected employee shall be entitled to be named parties. The Department Of Labor, rep Subpart B--Applications For Var iances, Limitations, Variations, Tol erances, Exemptions and Other Relief resented by the Office of the Solicitor, shall he deemed to be a party without S 1905.10 Variance, and other relief under jcctioit 6(b) (6) (A). the necessity of being named. (f) "Affected employee" means an em ployee who would be affected by the ,71'.".nt or denial of a variance, limitation, variation, tolerance, or exemption, or any one of ills authorized representatives, such as his collective bargaining agent,1 (a) Application for variance. Any em ployer. or class of employers, desiring a variance from 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 1 1905.3 Petition, for amendment* lo with the Assistant Secretary for Occu tliis part. pational Safety and Health, U.S. De Any person may at any time petition `.ho Assistant Secretary in writing to re vise, amend, or revoke any provisions of his part. The petition should set forth Atlier the terms or the substance of the rule desired, with a concise statement of the reasons therefor and the effects hereof. partment of Labor, Washington, D.C. 20210. (b) Contents. An application filed pur suant to paragraph (a) of this section shall include: (1) The n.-jir, and address of the applicant; (2) The address of the place or places of employment involved; 1905,4 Amcndmcu, to ihi* part. (3) A specif.cation of the standard or The Assistant Secretary may at any portion thereof from which the applicant time revise, amend, or revoke any pro seeks a variance; visions of tiffs part, on Ids own motion (4) A representation by the applicant, or upon the written petition of any supported by representations from quali person. fied persons having first-hand knowledge !} 1905.5 Effect of variance*. of the facts represented, that he is un able to comply with the standard or por A11 variances granted pursuant to this tion thereof by its effective date and part shall have only future effect. In his a detailed statement of the reasons tjiscrcfcion, th i Assistant Secretary may therefor; ccline to entertain an application for (5) A state .lent of the steps the ap : variance on a subject or issue eoueern- plicant has taken and will take, with ~S which a citation has been issued to specific dates where appropriate, to pro he employer involved and a proceeding tect employees against the hazard cov , m tire citation or a related issue con ered by the standard; cerning a proposed penalty or period of (6) A statement of when the appli >batement is peudim: before the Occil- 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 wild the standard; ;7> A statement of the CaeU the appli cant would show to establish that (i) 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; (li) he Is taking all available steps to safeguard his employees against the liazards covered by the standard; and (lit) he has an effective program for coining Into compliance with the stand ard as quickly as practicable; (8) Any request for a hearing, as pro vided In tills 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 the 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 rendered on the application for the 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. 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 tills paragraph is denied, the applicant shall be given prompt no tice of the deuial, 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 parlies 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 oilier relief under section 6(d). (a) Application for variance. Any em ployer, or class of cmpic. ers, 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, Wash lag ton, D.C. 201HO. FEDERAL REGISTER, VOL 34, NO. U4--WEDNESDAY, JUNE 30, 1971 ASI-RR 0003521 1 v' ' 12292 RULES AND REGULATIONS (b) Contents. An application filed pur suant to paragraph (a) of this section shall Include: Cl) The name and address of the applicant; (2) The address of the place or places of employment Involved; 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; (b) Posting at. the place or places where notices to employees are normally posted, a statement giving a summa ry 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 < (3) A description of the conditions, (2) The address of the place or places practices, means, methods, operations, or of employment Involved; (c) Other appropriate means. (v) If the applicant Is an affected em processes used or proposed to he used by (3) A specification of the provision of ployee, a certification that a copy of the tire applicant; the Act to or froir which '.he applicant application has bee i furnished to the (4) A statement showing how the con seeks a limitation, variation, tolerance, employer; and ditions, practices, means, methods, op or exemption. (vi) Any request for a hearing, as pro erations, or processes used or proposed (4) A representation showing that the vided in this part. to be used would provide employment limitation, variation* tolerance, cr ex (2) The Assistant Secretary may on and places of employment to employees emption sought Is necessary and proper his own motion proceed to modify or which are as safe and healthful as those to avoid serious Impairment of the na revoke a rule or order issued under sec required by the standard from which a tional defense; tion 6(b) (6) (A), 6(d), or 16 of the Act. variance Is sought: (5) Any request for a hearing, as Pro* In such event, the Assistant Secretary (5) A certification that the applicant vided in this part; and shall cause to bo published in the Fed has informed his employees of the appli (6) A description of how employees eral Register a notice of his Intention, cation by (1) giving a copy thereof to have been informed of the application affording Interested persons an op their authorized representative; (11) and of their right to petition the Assist portunity to submit written data, views, posting a statement giving a summary ant Secretary for a hearing, or arguments regarding the proposal and of the application and s-^.-ifylns where (c) Interim order--(1) Application. informing the affected employer and em a copy may be examined, 11 the place or An application may also be made for an ployees of their right to re :u. it a hear places where notices to employees are Interim order to be effective until a de ing, and shall take such other action as normally posted (or lu lieu of such sum rision is rendered on the application for may be appropriate to give actual notice mary, the posting of the application it the limitation, variation, tolerance, or to affected employees. Any request for self) ; and (ili) by other appropriate exemption filed previously or concur a hearing shall Include a short and plain means: rently. An application for an. interim statement of: ' (6) Any request for a hearing, as pro order may include statements of fact and (D How the proposed modification or vided In this part; and arguments as to why the order should be revocation would affect the requesting (7) A description of how employees granted. Tbe Assistant Secretary may party; and have been informed of the application and of their right to petition the Assist ant Secretary for a hearing, (c) Interim order,--(1) Application. 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, Oi) What the requesting party would seek to show on the subjects or Issues involved. <b) Renewal. Any final rule or order An application may also be made for an interim order to be effective until a de cision Is rendered on the application for the variance filed previously or con 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. 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, currently. An application for an interim order may Include statements of fact and arguments as to why the order should be granted. The Assistant Secre tary may rule ex parte upon the application. (2) Notice of denial of application. Il an application filed pursuant to subparagraph (l) 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 la 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 tire 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. g 1903.12 I.iniii.iilnnj, variation*, tnlcrpees, or cxctnplious. (3) Notice of the grant of an interim order. It 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 bo published in the Federal Register. It shall be a condition of the order that tbe 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. 1903.13 Modification, revocation, and renewal of rules or orders. (a) Modification or revocation. (1) An affected employer or an affected em 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*, oi' 16 of the Act. The application shall contain: <i) The name and address of the applicant; (il) A description of the relief which is sought; 5 1905.lt Aclion on applications, (a) Defective applications. (1) If on application filed pursuant to {1905.10(a), 1 1903.11(a), 1 1905.12(a), or 1 1905.13 does not conform to the appli cable section, the Assistant Secretary may deny the application. <2) Prompt notice of the denial of an application shall be giver, . to the applicant. (3) A notice of denial shall include, or be accompanied by, a brief statement of the giounds for the denial. (4) A denial of an application pur suant to this paragraph shall be. without prejudice to the filing of another application. (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: (1) the terms, or an accurate summary, of the applica (a) Application. Any person, or class Oil) A statement setting forth with tion; (il) a reference to the section of of persons, desiring a limitation, varia particularity the grounds for relief; the Act under which the application lias tion, tolerance, or exemption authorized (iv) If the applicant is an employer, a been filed; <1119 an invitation to inter by section 16 of the Act may file an certification that the applicant has In- ested persons to submit within a stated application containing the Information framed his effected employees of the period of time written data, vjcv.t, or s;if :if:c.d in paragraph 0>) of th's zee- application 'ey; arguments rcrr.nliug tho app'iea'.-.n: tion, with the Assistant Rouretray io,- (ii'< Or. mg r. espy thereof to tivir au and (iv) inlnmiliva to affccu-O em Occupational Safety and Health, UJ3. thorized representative; ployers and employees of any right to federal register, vol 36, no. u--v/eonesday, June so, mi ASI-PR 0003522 l 1 4 RULES AND REGULATIONS 12203 request a hearing on tho application. 1905.15 Roquc-U for hearings on ap- P./; h/crli't. Within the licjo allowed by a notice of llie Xiliue of an application, any aifceted employer or employe may fila with tho 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 than include: a) A concise sin tement of facts show ing how the employer or employee would bo affected by the relief applied for: (2) A specification of any statement or representation in tire application vliich is dented, 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. 1505.16 Conroll.litlion of proceedings. 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. Subpart C--Hearing* 1905.20 Notice of hearing. (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 tire hearing: (2) The legal authority under which the hearing Is to be held: (3) A specification of issues of fact and law; and (4) A designation of a heaving exam iner appointed under 5 U.3.C. 3105 to preside over the 1;caring. (c) Referral to hearing examiner. A copy of a notice of hearing served pur suant to part graph (a) of this section shall ba referred to tho hearing examiner designated therein, together with tho original application and any written re quest for a hearing thereon filed pursuant to this part. 1905.21 Maurer of service. 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 live party. The poison serving tho document shall certify to the maimer and tho date of the service. 1905,22 If'icing examiners; power* amt duller. (a) Powers. A hearing examiner desig nated to preside over a hearing fin U have ail powers neei_c.-a.-y or appropriate to conduct a fair, full, and impartial hear ing, including tho following: U) To administer oaths and affirma tions; (2) To rule upon oilers of proof and receive relevant evidence; (3) To provide for discovery and to determine it.; scope; (1) To republic the caurro of tho hearing and the conduct of the parties and their counsel therein: (5) To consider and rule upon proce dural requests; (6) To hold conferences for the set tlement or simplification of the issues by consent of tho parties; (7) To make, or to cause to be made, an inspection of ihc employment or place of employment involved. (3) To make decisions in accordance with the Act, tiiis part, and the Admin istrative Procedure Act (5 U.S.C. Ch. 5); and (9) To take any other appropriate ac tion authorized by tlie Act, this part, or the Administrative Procedure Act. (b) Private consultation. Except to th extent required for the disposition of ex' parte matters, a hearing examiner may not corisult a person or a party on any fact at issue, unless upon notice and op portunity for all parties to participate. Co) Disqualification. (1) When a hear ing examiner deems himself disqualified to preside over a particular hearing, he shall withdraw therefrom by notice on the record directed to the Chief Hearing Examiner; (2) Any party who deems a hearing examiner for any reason to bo disquali fied to preside, or to continue to preside, over a particular hearing, may file with the Cliief Hearing Examiner of the De partment of Labor a motion to disqualify and remove the hearing examiner, such motion to be supported by affidavits set ting forth the alleged grounds for dis qualification. The Chief Hearing Exam iner shall ml 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 to do vo, or refuses to obey on order'to provide or permit discovery, tho hearing examiner may make such orders with regard to the refusal as are ]U3t and ap propriate, 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 Prclicarii'c cimfcrcncc*. (a) Convening a conference. Upon his own motion or tho 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 au'hcntleity of dociimruts; (4) Limitation of the number of par ties and of expert witnesses: and (5) Such oilier 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 shrU make mv order which recites the action taken at the confer ence, the amendments allowed to any documents wiiich have been filed, and the agreements made between the par ties as to any of the matters considered, and which limits the issues for hearing 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. 1905.21 Consent findings ,-ir.d rules or order*. (a) General. At any time before the reception of evidence in any hearing, or during any hearing a reasonable op portunity may bo afforded to permit ne gotiation by the pat ties 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 tho probability of an. agreement which will result in a just disposition of the issues involved, (b) Contents. A ny agreement contain ing consent findings and rule or order disposing of a proceeding shall also provide: (1) That Uie rule or order shall have tire 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 tire 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. (c) 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 p.-csldl j hearing ex aminer that agreement ` cannot be leached. (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. No. 128- -Pt. r------ 1 FEDMAl REGISTER, VOL 36, NO. 124--WEDNESDAY, JUNE 30, 1971 ASI-PR 0003523 12294 RULE5 AND REGULATIONS g 1905.25 Discovery. (a) Depositions. (D For reasons of unavailability or lor 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 wiry such deposition should be taken; (in the time when, the place where, and the name and post office address of the person before whom the deposition is to be taken: (ill) the name and address of each witness; and (lv> 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 pon 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, Rnd 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 closure of the facts. Any ora! 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 upou 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 ,hich 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. sideration of the whole record and shall state all facta officially noticed .and re lied upon. It shall be mode on the basis of a preponderance of reliable and pro bative evidence. 1905.211 Exception*. Within 20 days after service of a de cision of a presiding hearing examiner, any party may file with the hearing ex aminer written exceptions thereto with supporting reasons, flueh ex options shall refer to the specific findings of fact, con clusions of law, or terms of the rule or order excepted to, the specific pages of transcript relevant to the suggestions, and shall suggest corrected findings of fact, conclusions of law, or terms of the rule or order. Upon receipt of any excep tions, the hearing examiner shall fix a time for filing any objections to the ex ceptions and any supporting reasons. 8 1905.29 Transmission of record. If exceptions are filed, the hearing ex aminer shall transmit the record of the proceeding to the Assistant 3ccretary for review. The record shall include-, the ap plication, any request for hearing there on, motions and requests filed in written form, rulings thereon, the transcript of the testimony token nt tiie hearing, to gether with the exhibits admitted In evi dence, any documents or papers filed in connection with prehearing conferences, such proposed findings of fact, conclu sions of law, rules or orders, and sup porting reasons, as may have been filed, the hearing examiner's decision, and such exceptions, statements of objec tions, and briefs In support thereof, as may have been filed in the proceeding- were the witness iiersonally present and 1905.27 Decisions of hearing exam testifying, such deposition may be read iners. 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 noticethereof. No part of a deposition shall be admitted in evidence unless there is a showing that the reasons for the taking of the deposition hi the first Instance exist at the time of herving. (b) Other discovery. Whenever appro priate to a just disposition of any issue in a hearing, the presiding hearing exam iner may allow discovery by any other appropriate procedure, such as by writ ten Interrogatories uixm a party, pro duction of documents by a- party, or by entry for inspection of the employment or place of employment involved. (a) Proposed findings of fact, con clusions, and rules or orders. Within 10 days alter receipt of notice that the transcript of the testimony has 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 the reasons for such proposals. Such proposals and brief shall be setved on all other parties, and shall refer to all portions of the record and to all authorities relied upon in sup port of each proposal. (b) Decision of the hearing examiner. Within -a reasonable time after the time allowed for the filing of proposed find 8 1905.26 Hearings. fa) Order of proceeding. Except as may be ordered otherwise by tlic presid ing hearing examiner, the party appli cant for relief shall proceed first at a hearing. 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: re filed there to, as provided in { 1905.28. The decision (b) Burden of proof. The party appli - of the hearing examiner shall include (1) cant shall have the burden of proof. a statement of findings and conclusions, 1905.30 Decision of llir Asm.-i.hiI relury. If exceptions to a decision of a hear ing examiner are taken pursuant to 5 1905.28, the Assistant Secretary shall upon consideration thereof, together with the record references and authori ties cited in support thereof, and any ob jections to exceptions and supporting reasons, make his decision. The decision 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 rer.-ions or bases for ttie actions taken on each exception presented. Subpart D--Summary Decisions 1905.40 Motion for summarydeci-iuii. (a) Any party may, at least 20 clays before the date fixed for any hearing under Subpart C of this part, move with or without supporting affidavits for a summary decision in hlc fa*-or on all or any part of the proceeding. Any other party may, within 10 days after servi'e of the motion, serve opposing affidavits (c) Evidence--(1) Admissibility. A party shall be entitled to present Ills cose or defense by oral or documentary evi dence, to submit rebuttal evidence, and to conduct such crr:s-e:u!iiii<r.tion as with reasons and bases therefor, upon each material issue of fact, law, or dis cretion presented on the record, and (2) the appropriate rule, order, relief, or denial then of. Tl:j d'-eirtcei of the heav or countermove for summary decision. The presiding hearing examiner may. in his discretion, set the matter for ai s ment and call for the submli-i m may be required for a full and true dis ing examiner shall be based uiwn a con briefs. FEDERAL REGISTER, VOL 36, NO. 114--WEDNESDAY, JUNE 30, )9/l ASI-PR 0003524 RULES AHO REGULATIONS (w Tlic mine of any documents under paragraph of this section .shall be whit "the hearing examiner, and copica any such documents ahull be served in : i. , i 11105.21. tc) The hearing examiner mav grant ,-tich motion if the pleadings, affidavits, malarial obtained by discovery or otherv ise obtained, or matters officially no ticed show that there is no genuine issue es 10 any material tact and that a party is entitled to summary decision. The hearing examiner may deny such motion v henever the moving party denies access to information by means of discovery to a party opposing the motion, < d) Affidavits shall set forth such facts as would be admissible in evidence in a proceeding subject to 5 U.3.C, 556 and 7 and shall show affirmatively that the eluant is competent to testify to the matters stated therein. When a motion for summary decision is made and sup ported as provided in this section, a i ty opposing the motion may not rest upon the mere allegations or denials of his pleading: his response must set forth specific facts showing that there is a nnuia issue ot fact for the hearing, ic) Should it appear from the affi davits of a party opposing the motion that he cannot tor reasons stated pre sent by affidavit facts essential to Justify his opposition, the hearing examiner may deny the motion for summary decision or may Oi'der a continuance to permit affi davits to be obtained or discovery to be had or may make such other order as Is just. tf> The denial of all or any part of a motion for summary decision by the hearing examiner shall not be subject to interlocutory appeal to the As:istant Secretary unless the hearing examiner certifies in writing Cl) that the ruling involves an Important question of law or policy as to which there is substantial ground for difference of opinion, and (3) drat an immediate appeal from the rul ing may materially advance the ultimate termination of tire proceeding. The al lowance of such an interlocutory appeal shall not stay the proceeding before the hearing examiner unless the Assistant Secretary shah s" order. 190.1.41 Summary decision, Ca) No genuine issue of material fact. (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 30 days after service thereof, unless, within such pe riod of time any party has filed written exceptions to the decision. If any timely exception is filed, the hewing examiner shall fix a time for filing any objections to the exception and any supporting rea sons. Thereafter, the Assistant Secretary, after consideration of tl e exceptions"and any 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 include a statement of-- (D findings and conclusions, and the reasons or bases therefor, on ail issues presented: and <fl) the terms and conditions of the rule crordc-made. (3* A com' 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 paro. Subport E--Effect of Initial Decisions 1905,50 Effort of uppcnl of a hearing exnioim.-r's decision. A hearing examiner's decision under this part shall not be operative pending a decision on appeal by the Assistant Secretary. 1905.51 Finality for purpose* of ju* dkinl 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 heating examiner which be comes final for lack of appeal Is not deemed final agency action for purposes of 5TJ.S.C. 704. Signed at Washington, D.C., this 22d day of June 1971. J. D. Hodgson, Secretary of tabor. |>'R noc.71- 0179 FUad d-39~71;:4J im] ASI-PR 0003525 FEDERAL REGISTER, VOL 34. NO, 126--WEDNESDAY, JUNE 30, 1971.