Subpart C
The hearing examiner must transmit the record to the Assistant Secretary when exceptions are filed. This is required by 1905.29, which states that "If exceptions are filed, the hearing examiner shall transmit the record of the proceeding to the Assistant Secretary for review." See also general Part 1905 procedures at Part 1905.
The record transmitted by the hearing examiner must include all of the following items when exceptions are filed: the application; any request for a hearing; motions and written requests and rulings thereon; the transcript of testimony; exhibits admitted in evidence; documents or papers filed in connection with prehearing conferences; proposed findings of fact, conclusions of law, rules or orders and supporting reasons if filed; the hearing examiner's decision; and any exceptions, statements of objections, and briefs filed in the proceeding. This list is taken directly from 1905.29.
Yes — the transcript of testimony and the exhibits admitted in evidence must be included in the record transmitted to the Assistant Secretary. 1905.29 explicitly requires inclusion of "the transcript of the testimony taken at the hearing, together with the exhibits admitted in evidence."
Yes — written motions and requests filed in the proceeding, and the hearing examiner's rulings on them, must be included in the record. 1905.29 states the record shall include "motions and requests filed in written form, rulings thereon."
Yes — documents or papers filed in connection with prehearing conferences are part of the record to be transmitted. 1905.29 explicitly lists "any documents or papers filed in connection with prehearing conferences."
Yes — any proposed findings of fact, conclusions of law, rules or orders, and supporting reasons that were filed in the proceeding must be included in the record. 1905.29 requires these items be transmitted when they were filed during the proceeding.
Yes — exceptions, statements of objections, and briefs filed in the proceeding must be transmitted as part of the record. 1905.29 lists these items among the materials the hearing examiner shall send to the Assistant Secretary when exceptions are filed.
The duty to transmit the record arises when exceptions are filed to the hearing examiner's decision. 1905.29 begins with: "If exceptions are filed, the hearing examiner shall transmit the record of the proceeding to the Assistant Secretary for review." For general procedures on variances and exceptions, see Part 1905.
Yes — the hearing examiner's decision must be included in the transmitted record. 1905.29 explicitly lists "the hearing examiner's decision" among the items to be transmitted when exceptions are filed.
The record includes both written materials and the transcript of oral testimony. 1905.29 requires "the transcript of the testimony taken at the hearing, together with the exhibits admitted in evidence," so oral testimony recorded in the transcript is part of the official record.
The Assistant Secretary receives the transmitted record to review exceptions filed to the hearing examiner's decision. 1905.29 requires transmission "to the Assistant Secretary for review," so the record provides the factual and legal basis the Assistant Secretary will examine in deciding the exceptions. See also general Part 1905 procedures at Part 1905.
Parties should file and preserve all relevant written materials, exhibit lists, transcripts, proposed findings, objections, and briefs during the proceeding so the hearing examiner can include them in the transmitted record. 1905.29 lists the precise items that must be transmitted when exceptions are filed, so ensuring those items are timely filed and entered into the record helps guarantee a complete submission for the Assistant Secretary's review. For guidance on variance procedures and the importance of complete submissions, see Part 1905 and relevant Letters of Interpretation such as the variance discussion in "Variances for crane load over people" (https://www.osha.gov/laws-regs/standardinterpretations/1999-03-24).
No — 1905.29 specifies the items that the hearing examiner shall transmit but does not itself authorize the examiner to add materials not filed in the proceeding; it requires transmission of the application, filings, transcript, exhibits admitted, prehearing documents, proposed findings and supporting reasons if filed, the examiner's decision, and any exceptions, objections, and briefs that were filed. See 1905.29 and general Part 1905 procedures at Part 1905. If parties believe necessary material is missing, they should raise that issue promptly during the proceeding so it can be made part of the official record.
The transmission requirement ensures the Assistant Secretary has the full official record of any hearing in which exceptions are filed, including variance matters governed by Part 1905. 1905.29 requires transmission of the record for review, and Part 1905 contains the procedures for variances and related hearings at Part 1905. OSHA Letters of Interpretation discussing variance applications and review (for example, the guidance in "Variance for crane load over people" https://www.osha.gov/laws-regs/standardinterpretations/1999-03-24 and the "Digester building exits variance" https://www.osha.gov/laws-regs/standardinterpretations/1996-05-29) illustrate how complete records and filings are important when OSHA evaluates variance requests.