[Code of Federal Regulations]
[Title 29, Volume 5]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1905.40]

[Page 75-76]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                                OF LABOR
 
                      Subpart D--Summary Decisions
 
Sec. 1905.40  Motion for summary decision.


    (a) Any party may, at least 20 days before the date fixed for any 
hearing under subpart C of this part, move with

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or without supporting affidavits for a summary decision in his favor on 
all or any part of the proceeding. Any other party may, within 10 days 
after service of the motion, serve opposing affidavits or countermove 
for summary decision. The presiding hearing examiner may, in his 
discretion, set the matter for argument and call for the submission of 
briefs.
    (b) The filing of any documents under paragraph (a) of this section 
shall be with the hearing examiner, and copies of any such documents 
shall be served in accordance with Sec. 1905.21.
    (c) The hearing examiner may grant such motion if the pleadings, 
affidavits, material obtained by discovery or otherwise obtained, or 
matters officially noticed show that there is no genuine issue as to any 
material fact and that a party is entitled to summary decision. The 
hearing examiner may deny such motion whenever the moving party denies 
access to information by means of discovery to a party opposing the 
motion.
    (d) Affidavits shall set forth such facts as would be admissible in 
evidence in a proceeding subject to 5 U.S.C. 556 and 557 and shall show 
affirmatively that the affiant is competent to testify to the matters 
stated therein. When a motion for summary decision is made and supported 
as provided in this section, a party opposing the motion may not rest 
upon the mere allegations or denials of his pleading; his response must 
set forth specific facts showing that there is a genuine issue of fact 
for the hearing.
    (e) Should it appear from the affidavits of a party opposing the 
motion that he cannot for reasons stated present by affidavit facts 
essential to justify his opposition, the hearing examiner may deny the 
motion for summary decision or may order a continuance to permit 
affidavits to be obtained or discovery to be had or may make such other 
order as is just.
    (f) The denial of all or any part of a motion for summary decision 
by the hearing examiner shall not be subject to interlocutory appeal to 
the Assistant Secretary unless the hearing examiner certifies in writing 
(1) that the ruling involves an important question of law or policy as 
to which there is substantial ground for difference of opinion, and (2) 
that an immediate appeal from the ruling may materially advance the 
ultimate termination of the proceeding. The allowance of such an 
interlocutory appeal shall not stay the proceeding before the hearing 
examiner unless the Assistant Secretary shall so order.