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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.

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