Withdrawal procedures

Under 2200.102 a party may withdraw a notice of contest, a citation, a notification of proposed penalty, or a petition for modification of abatement period at any stage of the proceeding.

• This list is explicit in 2200.102; other filings not listed should be treated separately.
• If you plan to withdraw one of these items, follow the service and posting requirements described in 2200.7(c), 2200.7(d), and 2200.7(g).

Under 2200.102 a party may withdraw at any stage of the proceeding.

• "Any stage" means there is no deadline in 2200.102 that prevents withdrawal before final disposition; however, procedural requirements for service and proof still apply per 2200.7(c) and 2200.7(d).
• Check whether other rules or agreements (e.g., settlement terms) affect the practical consequences of withdrawing.

Under 2200.102 the notice of withdrawal must be served "in accordance with 2200.7(c)" on all parties and authorized employee representatives who are eligible to elect, but have not elected, party status.

• Follow the service methods and timing requirements in 2200.7(c) exactly (e.g., method of delivery and who qualifies as a party to be served).
• Keep a record of how and when you served the notice because you must provide proof of service under 2200.7(d).

Under 2200.102 the notice of withdrawal must be posted for the benefit of affected employees who are eligible to elect party status but have not elected it, and the posting must follow the requirements in 2200.7(g).

• Post the notice where it will reasonably be seen by the affected employees (the posting locations and duration are set out in 2200.7(g)).
• If employees have an authorized employee representative who has not elected party status, you must still serve that representative as required by 2200.7(c).

Under 2200.102 proof of service must accompany the notice of withdrawal as required by 2200.7(d).

• Proof of service typically documents who was served, how they were served (e.g., hand delivery, mail, electronic), and the date of service.
• Keep copies of delivery receipts, certified mail records, or sworn statements of service so you can attach them to the withdrawal and show compliance with 2200.7(d).

Under 2200.102 you must serve "all parties and authorized employee representatives that are eligible to elect, but have not elected, party status." Representatives who have already elected party status are already parties and should be served under the general service rules in 2200.7(c).

• In practice, serve both elected representatives (as parties) and any authorized representatives who are eligible but did not elect party status as specified in 2200.7(c).
• Document service for all recipients to satisfy 2200.7(d).

Under 2200.102 the posting requirement specifically covers affected employees who are eligible to elect party status but have not elected it; if all affected employees are represented by authorized employee representatives who have already elected party status, the posting requirement for unrepresented employees may not apply.

• Still verify service obligations to elected representatives under 2200.7(c).
• When in doubt, post in the usual location per 2200.7(g) to ensure affected employees who might be eligible see the notice.

Under 2200.102 withdrawal of a petition for modification of an abatement period ends the petition proceeding, but it does not automatically change the original abatement requirement unless a separate agreement or order does so.

• If you withdraw the petition, the original abatement terms in the citation remain unless otherwise modified by the Agency, the Review Commission, or a settlement.
• Keep proof of withdrawal service and posting as required by 2200.7(c) and 2200.7(d).

Under 2200.102 the regulation does not prescribe a special content format for the notice of withdrawal, but it does require proper service and proof of service per 2200.7(c) and 2200.7(d).

• A practical withdrawal should identify the specific filing being withdrawn (e.g., citation number or docket) and include a statement that the filing is withdrawn.
• Attach proof of service and, if applicable, a copy of the posting per 2200.7(g).

Under 2200.102 the party filing the withdrawal is responsible for posting the notice in the manner prescribed by 2200.7(g) for the benefit of affected unrepresented employees.

• The posting must be in the place and for the duration required by 2200.7(g).
• Include a copy or proof of the posting with your proof of service as required by 2200.7(d).

Under 2200.102 an authorized employee representative who is eligible to elect but has not elected party status must still be served with the withdrawal under the service rules in 2200.7(c), and affected employees not represented must receive a posted notice under 2200.7(g).

• Serving eligible-but-not-elected representatives directly ensures they receive notice even if they decline party status.
• Document that service in your proof of service filed under 2200.7(d).

Under 2200.102 withdrawal does not automatically prevent OSHA from publishing information that is public under the Freedom of Information Act; OSHA posts certain citations and settlement agreements on its website and most settlement agreements remain subject to FOIA.

• OSHA's letter on website citation postings explains that settlement agreements are public information and some major agreements are posted, while many settlement agreements are not placed on the website but may be disclosed under FOIA; see the OSHA interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0 for details.
• For concrete expectations about online posting, consult the interpretation and coordinate with OSHA regional counsel if confidentiality is a concern.

Under 2200.102 proof of service must accompany the notice of withdrawal as required by 2200.7(d), and that proof should include evidence of posting when posting is required under 2200.7(g).

• File copies or affidavits showing when and where the notice was posted for affected employees, and attach them to the proof of service.
• If you used certified mail, delivery receipts, or photographs of the posted notice, include those with the supporting proof of service.

Under 2200.102 failing to serve and post the notice as required can result in improper notice to parties and affected employees and may lead the Review Commission to find the withdrawal defective or require corrective service/posting.

• The regulation ties withdrawal validity to compliance with 2200.7(c), 2200.7(d), and 2200.7(g).
• If service or posting is incomplete, promptly cure the defect and file amended proof of service to avoid disputes about the withdrawal's effectiveness.

Under 2200.102 a party may withdraw a citation at any stage, but the regulation does not authorize refiling the same citation in the same proceeding; refiling would depend on procedural rules and the facts of the case.

• Once withdrawn, the citation is no longer actively contested in that proceeding unless the parties or Commission take further action; consult the Review Commission rules and the presiding judge about reopening or refiling.
• Document all service and posting actions per 2200.7(c) and 2200.7(d) if you later seek to reinstate or litigate the matter.

Under 2200.102 withdrawal of a notification of proposed penalty removes that filing from the current proceeding, but it does not necessarily bar OSHA from pursuing enforcement or assessing penalties under its statutory authority in other proceedings.

• Withdrawal acts within the Review Commission proceeding; OSHA may take other enforcement actions consistent with the OSH Act and agency policy.
• Keep proof of the withdrawal service and posting per 2200.7(c) and 2200.7(d) to establish the record of your action.

Under 2200.102 the regulation permits withdrawal but does not prohibit attaching conditions to a withdrawal; however, any conditional withdrawal should be clearly stated and will be interpreted by the presiding judge or the Commission in light of procedural rules.

• If you file a conditional withdrawal, clearly state the condition and provide the required service and posting per 2200.7(c) and 2200.7(d).
• Consider whether a settlement agreement (which may be public under FOIA) is a better mechanism; see OSHA's interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0 about settlement agreement postings.

Under 2200.102 the regulation requires service on all parties and certain authorized employee representatives and posting for affected employees; it does not add a separate requirement to notify OSHA Headquarters, but you should serve the OSHA party as required by 2200.7(c).

• Serve the regional OSHA office or the Agency representative listed in the proceeding under the service rules in 2200.7(c).
• Keep proof of that service consistent with 2200.7(d).

Under 2200.102 a party may withdraw its filing; if an employee is a party or has the authority to act for a party (for example, as an authorized employee representative who elected party status), they may file a withdrawal consistent with the service and posting rules in 2200.7(c) and 2200.7(g).

• If the employee is not a party, the withdrawal should be filed by the actual party or representative; ensure that all required recipients are served and that proof of service is filed under 2200.7(d).
• If multiple employees are affected, consider whether an authorized representative has elected party status before proceeding.