Director's decision and order

Under 1921.16(a), the Assistant Secretary decides whether to adopt, modify, or set aside the hearing examiner's decision and will upset findings of fact only if they are "clearly erroneous." The Assistant Secretary must include a statement of the reasons for the action and must serve copies of the final decision and order on the parties. See 1921.16(a).

• Practical point: "Clearly erroneous" is a deferential standard—the Assistant Secretary will accept the hearing examiner's factual findings unless the evidence shows a clear mistake.
• Supporting reference: review the full decision rules in 1921.16.

Under 1921.16(b), a party may file a written petition for modification or vacation of a final order that has been in force for at least two years. The petition must show (1) satisfactory compliance with the order during the 24 months immediately before filing and (2) changes in conditions or circumstances that demonstrate continued enforcement of the order is no longer necessary. See 1921.16(b).

• Include in the petition: an explicit statement of the changes relied upon, why relief is justified, the precise relief requested, and any supporting affidavits for factual matters.
• Supporting reference: see the full text at 1921.16.

Under 1921.16(b), you should include written statements showing 24 months of satisfactory compliance and evidence of changes in conditions or circumstances that justify relief; you may support factual claims with affidavits. See 1921.16(b).

• Practical checklist:
  • A clear statement that the order has been complied with for the last 24 months.
  • Specific descriptions of how conditions have changed and why those changes remove the need for the order.
  • A precise statement of the relief you want.
  • Affidavits or other documentary proof (inspection reports, maintenance logs, training records, etc.).
• Supporting reference: see 1921.16 for full requirements.

Under 1921.16(c), if the Assistant Secretary notifies the petitioner that sufficient cause for relief has not been shown, the petitioner may file a written request for a hearing; upon such request the matter will be assigned for a hearing on not less than 10 days' notice and will be conducted under the rules in 1921.9 through 1921.22. See 1921.16(c).

• Practical points:
  • The hearing must be scheduled with at least 10 days' advance notice.
  • The hearing follows the procedures in 1921.9 through 1921.22, so be prepared for formal process rules.
  • The Deputy Solicitor of Labor may oppose the petition and participate in the hearing.
• Supporting reference: see 1921.16(c).

Under 1921.16(a), yes—the Assistant Secretary must include a statement of the reasons or bases for adopting, modifying, or setting aside the hearing examiner's findings, conclusions, or order. See 1921.16(a).

• Practical tip: a clear explanation will state which parts of the hearing examiner's decision were changed, why the change was necessary, and the legal or factual basis for the Assistant Secretary's action.
• Supporting reference: consult the full provision at 1921.16.

Under 1921.16(a), copies of the Assistant Secretary's decision and order must be served upon the parties. See 1921.16(a).

• Practical guidance: "Served" means the parties receive the document according to the service rules applicable in the proceedings (follow the procedures in 1921.9 and related sections for service methods and proof).
• Supporting reference: see 1921.16 and the procedural rules in 1921.9.

Under 1921.16(a), "clearly erroneous" means the Assistant Secretary gives deference to the hearing examiner's fact-finding and will only overturn those findings when the record demonstrates a clear mistake. See 1921.16(a).

• Practical explanation:
  • The hearing examiner's ability to weigh witness credibility and evidence is respected.
  • A finding is "clearly erroneous" when, after reviewing the whole record, the reviewing official is left with a firm conviction that a mistake was made.
• Supporting reference: see the text at 1921.16.

Under 1921.16(c), the Deputy Solicitor of Labor may file a pleading and otherwise appear in opposition to a petition for modification and may participate in the hearing if the petitioner requests one. See 1921.16(c).

• Practical point: expect the Deputy Solicitor to defend the original order and to challenge claims that the order is no longer necessary.
• Supporting reference: see 1921.16 and the related hearing procedures in 1921.9.

Under 1921.16(c), once a petition and hearing request are referred to the Chief Hearing Examiner, the hearing is governed by the procedures in 1921.9 through 1921.22. See 1921.16(c).

• Practical checklist: those procedures cover scheduling, notice, pleadings, evidence, representation, and decision-making (review 1921.9 and other sections in the subpart).
• Supporting reference: see the suite of rules at 1921.

Under 1921.16(b), a petition for modification may be filed after a final order has been in force for two years or more; the regulation does not set a strict deadline beyond that—however, the petition must show satisfactory compliance during the 24 months immediately preceding filing. See 1921.16(b).

• Practical advice: file as soon as you can once you have two full years of compliance evidence to present, because the critical requirement is documenting the 24 months immediately prior to the filing.
• Supporting reference: see 1921.16.

Under 1921.16(b), affidavits may be used to support factual matters in a petition for modification, but practical compliance petitions are stronger when affidavits are supplemented with objective documents like inspection logs, training records, maintenance reports, or test results. See 1921.16(b).

• Practical recommendation:
  • Use affidavits to attest to facts not easily documented (e.g., daily practices).
  • Provide documentary evidence where available to corroborate affidavits.
• Supporting reference: see 1921.16.

Under 1921.16(b), the petition must expressly set forth the changes in conditions relied upon, explain why the petitioner believes relief is justified, and state precisely the nature of the relief sought. See 1921.16(b).

• Practical drafting tips:
  • Be specific about which paragraphs or requirements of the order you want modified or vacated.
  • Explain how workplace changes (engineering controls, procedures, staffing, etc.) eliminate the need for the prior order.
• Supporting reference: full language at 1921.16.

Under 1921.16(c), if the Assistant Secretary finds sufficient cause after investigation, he will enter an order granting relief; that order is issued by the Assistant Secretary and not automatically remanded to the hearing examiner. See 1921.16(c).

• Practical note: a party adverse to the Assistant Secretary's final order would need to look to the appropriate appellate remedies outside the internal hearing examiner process.
• Supporting reference: see 1921.16 for the Assistant Secretary's authority.

Under 1921.16(c), the Assistant Secretary will refer the petition and the request for a hearing to the Chief Hearing Examiner, who will assign the matter for a hearing that must be held on not less than 10 days' notice. See 1921.16(c).

• Practical implication: expect formal scheduling from the Chief Hearing Examiner's office and plan to meet notice and procedural deadlines set by the hearing examiner.
• Supporting reference: see the provision at 1921.16.

Under 1921.16(b), the petition-for-modification provision applies to a final order of the Assistant Secretary issued pursuant to 1921.13(c) or paragraph (a) of 1921.16 itself; in other words, it covers final Assistant Secretary orders issued under those authorities. See 1921.16(b) and 1921.13(c).

• Practical takeaway: confirm whether your order was issued under 1921.13(c) or under the Assistant Secretary's action found in 1921.16(a) to determine eligibility for this petition route.
• Supporting references: see 1921.16 and 1921.13.