29 U.S.C. § 661 — Occupational Safety and Health Review

Page 177 TITLE 29—LABOR § 661 1 So in original. Probably should be ‘‘An’’. set out as a note under section 1657 of Title 28, Judici- ary and Judicial Procedure. § 661. Occupational Safety and Health Review Commission (a) Establishment; membership; appointment; Chairman The Occupational Safety and Health Review Commission is hereby established. The Commis- sion shall be composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate, from among persons who by reason of training, edu- cation, or experience are qualified to carry out the functions of the Commission under this chapter. The President shall designate one of the members of the Commission to serve as Chairman. (b) Terms of office; removal by President The terms of members of the Commission shall be six years except that (1) the members of the Commission first taking office shall serve, as designated by the President at the time of ap- pointment, one for a term of two years, one for a term of four years, and one for a term of six years, and (2) a vacancy caused by the death, resignation, or removal of a member prior to the expiration of the term for which he was ap- pointed shall be filled only for the remainder of such unexpired term. A member of the Commis- sion may be removed by the President for ineffi- ciency, neglect of duty, or malfeasance in office. (c) Omitted (d) Principal office; hearings or other pro- ceedings at other places The principal office of the Commission shall be in the District of Columbia. Whenever the Commission deems that the convenience of the public or of the parties may be promoted, or delay or expense may be minimized, it may hold hearings or conduct other proceedings at any other place. (e) Functions and duties of Chairman; appoint- ment and compensation of administrative law judges and other employees The Chairman shall be responsible on behalf of the Commission for the administrative oper- ations of the Commission and shall appoint such administrative law judges and other employees as he deems necessary to assist in the perform- ance of the Commission’s functions and to fix their compensation in accordance with the pro- visions of chapter 51 and subchapter III of chap- ter 53 of title 5 relating to classification and General Schedule pay rates: Provided, That as- signment, removal and compensation of admin- istrative law judges shall be in accordance with sections 3105, 3344, 5372, and 7521 of title 5. (f) Quorum; official action For the purpose of carrying out its functions under this chapter, two members of the Commis- sion shall constitute a quorum and official ac- tion can be taken only on the affirmative vote of at least two members. (g) Hearings and records open to public; promul- gation of rules; applicability of Federal Rules of Civil Procedure Every official act of the Commission shall be entered of record, and its hearings and records shall be open to the public. The Commission is authorized to make such rules as are necessary for the orderly transaction of its proceedings. Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure. (h) Depositions and production of documentary evidence; fees The Commission may order testimony to be taken by deposition in any proceeding pending before it at any state of such proceeding. Any person may be compelled to appear and depose, and to produce books, papers, or documents, in the same manner as witnesses may be compelled to appear and testify and produce like documen- tary evidence before the Commission. Witnesses whose depositions are taken under this sub- section, and the persons taking such deposi- tions, shall be entitled to the same fees as are paid for like services in the courts of the United States. (i) Investigatory powers For the purpose of any proceeding before the Commission, the provisions of section 161 of this title are hereby made applicable to the jurisdic- tion and powers of the Commission. (j) Administrative law judges; determinations; re- port as final order of Commission A1 administrative law judge appointed by the Commission shall hear, and make a determina- tion upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such administrative law judge by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the administrative law judge shall become the final order of the Commission within thirty days after such report by the administrative law judge, unless within such period any Commission member has di- rected that such report shall be reviewed by the Commission. (k) Appointment and compensation of adminis- trative law judges Except as otherwise provided in this chapter, the administrative law judges shall be subject to the laws governing employees in the classified civil service, except that appointments shall be made without regard to section 5108 of title 5. Each administrative law judge shall receive compensation at a rate not less than that pre- scribed for GS–16 under section 5332 of title 5. (Pub. L. 91–596, § 12, Dec. 29, 1970, 84 Stat. 1603; Pub. L. 95–251, § 2(a)(7), Mar. 27, 1978, 92 Stat. 183.) Editorial Notes REFERENCES IN TEXT The General Schedule, referred to in subsec. (e), is set out under section 5332 of Title 5, Government Organiza- tion and Employees. The Federal Rules of Civil Procedure, referred to in subsec. (g), are set out in the Appendix to Title 28, Ju- diciary and Judicial Procedure. Page 178 TITLE 29—LABOR § 662 CODIFICATION Subsec. (c) of this section amended sections 5314 and 5315 of Title 5, Government Organization and Employ- ees. In subsec. (e), reference to section 5372 of title 5 was substituted for section 5362 on authority of Pub. L. 95–454, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221, which redesignated sections 5361 through 5365 of title 5 as sec- tions 5371 through 5375. AMENDMENTS 1978—Subsecs. (e), (j), (k). Pub. L. 95–251 substituted ‘‘administrative law judge’’ and ‘‘administrative law judges’’ for ‘‘hearing examiner’’ and ‘‘hearing exam- iners’’, respectively, wherever appearing. Statutory Notes and Related Subsidiaries REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY RATES References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organi- zation and Employees, see section 529 [title I, § 101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5. § 662. Injunction proceedings (a) Petition by Secretary to restrain imminent dangers; scope of order The United States district courts shall have jurisdiction, upon petition of the Secretary, to restrain any conditions or practices in any place of employment which are such that a danger ex- ists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this chapter. Any order issued under this section may require such steps to be taken as may be necessary to avoid, cor- rect, or remove such imminent danger and pro- hibit the employment or presence of any indi- vidual in locations or under conditions where such imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations without a com- plete cessation of operations, or where a ces- sation of operations is necessary, to permit such to be accomplished in a safe and orderly man- ner. (b) Appropriate injunctive relief or temporary restraining order pending outcome of en- forcement proceeding; applicability of Rule 65 of Federal Rules of Civil Procedure Upon the filing of any such petition the dis- trict court shall have jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement pro- ceeding pursuant to this chapter. The pro- ceeding shall be as provided by Rule 65 of the Federal Rules, Civil Procedure, except that no temporary restraining order issued without no- tice shall be effective for a period longer than five days. (c) Notification of affected employees and em- ployers by inspector of danger and of rec- ommendation to Secretary to seek relief Whenever and as soon as an inspector con- cludes that conditions or practices described in subsection (a) exist in any place of employment, he shall inform the affected employees and em- ployers of the danger and that he is recom- mending to the Secretary that relief be sought. (d) Failure of Secretary to seek relief; writ of mandamus If the Secretary arbitrarily or capriciously fails to seek relief under this section, any em- ployee who may be injured by reason of such failure, or the representative of such employees, might bring an action against the Secretary in the United States district court for the district in which the imminent danger is alleged to exist or the employer has its principal office, or for the District of Columbia, for a writ of man- damus to compel the Secretary to seek such an order and for such further relief as may be ap- propriate. (Pub. L. 91–596, § 13, Dec. 29, 1970, 84 Stat. 1605.) Editorial Notes REFERENCES IN TEXT Rule 65 of the Federal Rules of Civil Procedure, re- ferred to in subsec. (b), is set out in the Appendix to Title 28, Judiciary and Judicial Procedure. § 663. Representation in civil litigation Except as provided in section 518(a) of title 28 relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and rep- resent the Secretary in any civil litigation brought under this chapter but all such litiga- tions shall be subject to the direction and con- trol of the Attorney General. (Pub. L. 91–596, § 14, Dec. 29, 1970, 84 Stat. 1606.) § 664. Disclosure of trade secrets; protective or- ders All information reported to or otherwise ob- tained by the Secretary or his representative in connection with any inspection or proceeding under this chapter which contains or which might reveal a trade secret referred to in section 1905 of title 18 shall be considered confidential for the purpose of that section, except that such information may be disclosed to other officers or employees concerned with carrying out this chapter or when relevant in any proceeding under this chapter. In any such proceeding the Secretary, the Commission, or the court shall issue such orders as may be appropriate to pro- tect the confidentiality of trade secrets. (Pub. L. 91–596, § 15, Dec. 29, 1970, 84 Stat. 1606.) § 665. Variations, tolerances, and exemptions from required provisions; procedure; dura- tion The Secretary, on the record, after notice and opportunity for a hearing may provide such rea- sonable limitations and may make such rules and regulations allowing reasonable variations, tolerances, and exemptions to and from any or all provisions of this chapter as he may find nec- essary and proper to avoid serious impairment of the national defense. Such action shall not be in effect for more than six months without noti- fication to affected employees and an oppor- tunity being afforded for a hearing.