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THE INDUSTRIAL BOARD OF APPEALS
RULES
OF PROCEDURE AND PRACTICE
Title 12 of the New York State Official Compilation of Codes Rules
and Regulations, Chapter 1, Subchapter B, Part 72.
PART
72
APPLICATIONS
FOR STAY FROM NOTICE OF DANGEROUS CONDITION ("UNSAFE NOTICE") ISSUED PURSUANT
TO SECTION 200(2) OF LABOR LAW
Section § 72.1 Application.
(a) The provisions of this Part shall apply to
the filing, processing, hearing, consideration and determination of an application
for a stay from a notice of a dangerous condition ("unsafe notice") issued
by the Commissioner of Labor pursuant to section 200, subdivision 2 of the
Labor Law.
(b) Section 200, subdivision 2, provides:
"2. If the commissioner finds that any machinery, equipment,
or device in any place to which this chapter applies is in a dangerous
condition, or finds that any area to which this chapter applies is in
a dangerous condition, he may attach a notice to such machinery, equipment,
or device, or post a notice in such area warning all persons of the danger.
Such notice shall prohibit the use of such machinery, equipment, or device
or prohibit further work in or occupancy of such area until the dangerous
condition is corrected and the notice is removed by the commissioner.
Upon receipt of a written notification from the employer that the dangerous
condition has been corrected, the commissioner shall make a reinspection
within ten working days, and if the commissioner finds that the dangerous
condition has been corrected, he shall remove the notice. The filing
with the board of a petition for a review of the validity and reasonableness
of the commissioner's order pursuant to section one hundred one of this
chapter, shall not stay further proceedings; provided, however, that the
board, in its discretion, may upon application of the petitioner stay
further proceedings. The board shall grant or deny such application for
a stay within seventy-two hours after the filing of the application."
(c) The foregoing procedure for tagging unsafe
an object or an area referred to in section 200, subdivision 2, is invoked
when an enforcement representative of the Commissioner of Labor finds that
the condition of any machinery, equipment, device or area to which the Labor
Law applies, or that the circumstances under which any of the aforesaid
items or areas are or may be used, evinces or is likely to occasion a degree
of danger or a severity of hazard, justifying summary prohibition of the
use of the tagged object or area.
(d) An "unsafe notice" which is affixed to an
object or which is posted in an area pursuant to the above quoted Labor
Law provision customarily is accompanied with a Notice of Violation and
Order to Comply which includes:
(1) an order forbidding the use of the tagged
object or area until the "unsafe notice" is OFFICIALLY removed or otherwise
LAWFULLY terminated; and
(2) if not previously issued, an order directing
that the alleged dangerous condition be corrected.
(e) If
a party deems that an "unsafe notice" or Notice of Violation and Order
to Comply is unreasonable or invalid, a petition to revoke, amend or
modify the same may be filed under Section 101 as provided in Part 66 of
this Subchapter. If a party desires to continue to use the tagged machinery,
equipment, device or area pending the resolution of the Section 101 proceeding,
an application therefor must be made under this Part. Such an application
should be made either contemporaneously with or after the filing of a petition
under Section 101.
§ 72.2 Application;
How Made.
An application for a stay of an "unsafe
notice" shall be made by a verified petition on notice to the Commissioner
of Labor as hereinafter set forth. The original and three conformed copies
of the petition and of all accompanying papers, with proof of service thereof
upon the office of the Commissioner's general counsel and the office of the
Director of the Division which issued the said order, shall be filed with
the board at its Albany office.
§ 72.3 Form
and Content of Petition.
The petition shall:
(a) contain a caption in the following form:
(b) state the address of the applicant;
(c) state the address and location of the machinery,
equipment, device or area which is the subject of the notice;
(d) describe the machinery, equipment, device
or area prohibited to be used;
(e) describe the manner in which the machinery,
equipment, device or area is used or operated;
(f) state whether the persons using the machinery,
equipment, device or area have any special training or competence and the
extent of their supervision, if any;
(g) annex a complete copy of the notice sought
to stayed, including copies of any other orders, notices and supporting
documents issued in connection therewith;
(h) state the facts showing why the notice is
erroneous or unreasonable and, where possible, submit affidavits or other
reliable, relevant evidence to justify a stay;
(i) set forth the relief requested; and
(j) be signed and verified by applicant or an
authorized representative.
§ 72.4 Answer
to Petition not Required.
All allegations of fact in the petition
shall be deemed controverted by the Commissioner of Labor, unless expressly
admitted. No answer shall be required.
§ 72.5 Conduct
of Proceeding.
(a) The
board may decide the application on the basis of the papers and other materials
submitted in the matter, or it may in its discretion hear argument or hold
a hearing for such purposes as it may consider appropriate. If a hearing
is to be held or argument had, the Board shall fix a time and place therefor
and shall notify the parties and any person which it deems might aid it
in arriving at a determination.
(b) In the discretion of the Board, interested
persons may be allowed to intervene.
(c) The
Board may affirm, revoke or modify the "unsafe notice" under review, or
make such determination as it may deem proper. Such determination shall
be effective from a date therein specified until further action by the Board
or decision of the Section 101 proceeding.