Assistant Secretary decision process

The Assistant Secretary must consider the exceptions, the record references and authorities cited in support, and any objections, and then make a decision that may affirm, modify, or set aside the hearing examiner's findings, conclusions, or order. This is required by 1905.30, which directs the Assistant Secretary to base the decision on the record and the arguments presented under 1905.28.

• Practical tip: When you file exceptions under 1905.28, make sure you point to specific pages of the record and to the legal authority you rely on so the Assistant Secretary can consider them under 1905.30.

Yes. The Assistant Secretary must include a statement of reasons or bases explaining the action taken on each exception presented. 1905.30 expressly requires that the decision include reasons for the disposition of every exception.

• Practical tip: Read the Assistant Secretary's decision carefully to find the rationale on each exception; that rationale is the official agency explanation and is important for any further review.

A party should include clear citations to the administrative record, the specific legal authorities relied upon, and a concise explanation of why the hearing examiner’s findings, conclusions, or order are incorrect. While 1905.28 governs filing exceptions, 1905.30 makes clear the Assistant Secretary will act upon the exceptions together with the record references and authorities cited.

• Practical items to include: (1) pinpointed record citations (page, exhibit); (2) specific legal citations and argument; (3) any objection to opposing exceptions and the supporting reasons.

Yes. The Assistant Secretary may affirm, modify, or set aside, in whole or in part, the findings, conclusions, and the rule or order contained in the hearing examiner's decision. This authority is stated in 1905.30.

• Practical impact: The final agency outcome may differ from the hearing examiner’s decision, so parties should prepare exceptions carefully because the Assistant Secretary can alter both factual findings and legal conclusions.

Yes. 1905.30 requires the Assistant Secretary to consider the exceptions together with any objections to those exceptions and the supporting reasons. Opposition filings therefore are part of the materials the Assistant Secretary will evaluate.

• Practical tip: If you oppose another party’s exceptions, cite record pages and legal authority in your objection so the Assistant Secretary has an organized presentation to consider.

No new evidence is typically considered at the exceptions stage; exceptions should rely on the existing administrative record and legal authorities. 1905.30 directs the Assistant Secretary to act on the exceptions together with the record references and authorities cited in support of them.

• Practical tip: If you believe additional fact-finding is essential, state that in your exception and explain why the record is incomplete; the Assistant Secretary may then direct further proceedings if appropriate, but you should not expect to simply file new evidence at this stage.

If no exceptions are filed under 1905.28, the presiding hearing examiner’s decision typically stands subject to the procedures in Part 1905; absence of exceptions means there is nothing for the Assistant Secretary to review under 1905.30.

• Practical note: Parties should review Part 1905 for the precise procedural consequences in their specific case and applicable timelines; if you miss an exceptions deadline you may lose the opportunity to have the Assistant Secretary reconsider the decision.

The statute authorizes the Assistant Secretary to affirm, modify, or set aside the hearing examiner's decision, and in practice the Assistant Secretary may also direct further proceedings if the record is inadequate. 1905.30 focuses on decision-making based on the record and exceptions; where necessary, the Assistant Secretary can order additional steps to develop the record before issuing a final resolution.

• Practical tip: If you think more fact-finding is required, explain in your exceptions why the record is incomplete and request that the Assistant Secretary remand for further proceedings.

The Assistant Secretary must provide a sufficient statement of reasons or bases that explains the action taken on each exception presented; the statement should identify the issues raised and the rationale for the agency’s disposition. This requirement is explicit in 1905.30.

• Practical suggestion: If you plan to seek judicial review later, a clear administrative explanation is critical—so the Assistant Secretary’s written reasoning should show how the record and applicable law support the decision.

Yes. Parties may raise jurisdictional, procedural, factual, or legal issues in exceptions filed under 1905.28, and the Assistant Secretary is required under 1905.30 to consider those exceptions and any objections to them.

• Practical tip: When claiming a jurisdictional or legal error, cite the exact part of the record and the controlling authority so the Assistant Secretary can address that specific claim in the written decision.

Yes; after the Assistant Secretary issues a decision on exceptions under 1905.30, that decision constitutes the agency’s administrative resolution of the matter, subject to any further judicial review permitted by law.

• Practical point: If you disagree with the Assistant Secretary’s final decision, your next step for relief is typically to seek judicial review in the appropriate federal court, and the Assistant Secretary’s written reasons will be central to that review.

Yes. 1905.30 instructs the Assistant Secretary to consider exceptions along with "any objections to exceptions and supporting reasons," so objections filed by opposing parties are part of the materials the Assistant Secretary must evaluate.

• Practical tip: Treat objections seriously—briefly explain why the exceptions should be denied and point to record pages and legal support.

You should provide precise record citations (transcript page, exhibit number) and cite the legal authority you rely on, then explain briefly how the record supports your legal argument. The Assistant Secretary will act on the exceptions together with the record references and authorities cited, per 1905.30 and filing rules in 1905.28.

• Example structure for an exception: (1) identification of the specific finding you challenge; (2) pinpoint record citation; (3) legal citation and short argument; (4) requested remedy.

No. The Assistant Secretary may accept or reject the hearing examiner’s factual findings, and may affirm, modify, or set them aside in whole or in part based on the record and the exceptions presented, as provided by 1905.30.

• Practical implication: If you disagree with a factual finding, explain in your exceptions why the record does not support it and point to specific testimony or exhibits that contradict the finding.

Letters of interpretation and past variance-related guidance can clarify agency expectations but do not replace the Part 1905 procedures; the Assistant Secretary will consider the record and legal authorities under 1905.30. For example, OSHA’s guidance on variances explains the type of showing required for a permanent variance, which is relevant to any exceptions that challenge variance-related findings (see the "Variance for crane load over people" LOI).

• Practical note: If your exceptions involve a variance issue, cite Part 1905 and any relevant OSHA interpretation letters to show how your proposed alternative meets the required safety equivalency.

If you believe the record is incomplete, state that explicitly in your exceptions, identify the missing information, and explain why additional proceedings are necessary; the Assistant Secretary may then decide to order further proceedings before issuing a final decision under 1905.30.

• Practical tip: Be specific about what evidence or testimony is lacking and how it affects the outcome, so the Assistant Secretary can determine whether to remand or accept the record as adequate.

Yes. OSHA’s interpretation letters discussing variances and Part 1905 procedures provide practical examples of the evidentiary showing and statements required for variance requests; for instance, the "Overhead crane lateral clearance" LOI and the "Variance for crane load over people" LOI discuss the variance standards and can guide arguments where exceptions contest variance-related findings. Those LOIs complement the procedural rules in 1905.30.

• Practical use: If your case includes a proposed variance or alternative practices, cite these LOIs to show how similar requests were evaluated and what documentation is persuasive.