“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 80?3347 \u00a0 CARHAR CONTRACTING COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 23, 1981ORDERBefore CLEARY, Chairman ; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? TheSecretary of Labor (?Secretary?) has moved for acceptance of his late-filedcomplaint. The motion was made after the date on which the complaint was due tobe filed.[1] Subsequent to the filingof the Secretary?s motion, the case was assigned to Administrative Law JudgeRichard DeBenedetto. The judge observed that the motion was not timely underCommission Rule 5, 29 C.F.R. ? 2200.5, which provides: ?Requests for extensionsof time for the filing of any pleading or document must be received in advanceof the date on which the pleading or document is due to be filed.?[2] Judge DeBenedettointerpreted the motion as a request for a waiver of Rule 5. Citing ASARCO, Inc., El Paso Division, 80OSAHRC ___, 8 BNA OSHC 2156, 1980 CCH OSHD ? 24,838 (No. 79?6850, 1980) (?ASARCO?), the judge held that only theCommission, and not one of its administrative law judges, can waive aCommission rule. Accordingly, the judge filed the case with the Commission fora ruling on the motion.??????????? Subsequentto the judge?s filing of the case with the Commission, the Secretary filed amotion for remand, arguing that the judge mistakenly treated his motion as arequest for a waiver of Rule 5. The Secretary asks that the Commission clarifyits decision in ASARCO to make itclear that Commission judges have the authority to rule on motions such as theone at issue in this case.??????????? TheSecretary?s request does not seek a waiver of a Commission rule within the meaningof ASARCO. Instead, it is the type ofprocedural motion on which Commission judges traditionally have ruled. Theauthority of Commission judges to ?[d]ispose of procedural requests or similarmatters . . .? is provided for in Commission Rule 66(h), 29 C.F.R. ?2200.66(h). Moreover, such authority has customarily been exercised by thoseholding positions similar to that of a Commission judge. See generally AttorneyGeneral?s Manual on the Administrative Procedure Act (1947) at 74?75. Indeed,Commission Rule 66 is patterned generally on the powers and duties section ofthe Administrative Procedure Act. Section 7(b) of the Administrative ProcedureAct, 5 U.S.C. ? 556(c). The Secretary?s motion is the type of proceduralrequest on which Commission judges can and must rule.??????????? Accordingly,the case is remanded to Judge DeBenedetto for a ruling on the Secretary?smotion to accept the late-filed complaint and for further proceedings. Inmaking his ruling, the judge should note that the Commission has consistentlygranted motions for late filing of pleadings in the absence of eithercontumacious conduct by the moving party or prejudice to the nonmoving movingparty. E.g., Boardman Co., ___ OSAHRC___, 9 BNA OSHC 1163, 1981 CCH OSHD ? 25,017 (No. 80?75, 1980); Michael Construction Co., 80 OSAHRC ___,9 BNA OSHC 1029, 1980 CCH OSHD ?24,960 No. 80?1972, 1980). SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: JAN 23 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 80?3347 \u00a0 CARHAR CONTRACTING COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 October 31, 1980ORDER??????????? TheSecretary has moved to file a late complaint. The motion is opposed byrespondent, Carhar Contracting Co., Inc. (?Carhar?).??????????? Carharwas issued a citation on May 22, 1980. The notice of contest was received bythe Secretary on June 10, 1980. Under Commission Rule 33(a)(1)[3] the Secretary had untilJune 30, 1980, in which to file his complaint. By letter dated July 2, 1980,and filed with the Commission on July 7, 1980, the Secretary requested anadditional 30 days in which to file the complaint. The Commission granted the request.By letter dated July 28, 1980, and filed with the Commission on July 30, 1980,the Secretary requested 30 more days for filing the complaint. Carhar expressedits opposition, stating, among other things, that the Secretary?s requestcontravenes Commission Rule 5.[4] Commission Judge FosterFurcolo, by order of August 14, 1980, allowed the Secretary until August 29,1980, in which to file the complaint. On September 15, 1980, Chief Judge PaulTenney issued the following order:Since no timely complaint has been filedpursuant to Commission Rule 38 the Secretary of Labor is hereby Ordered withinten (10) days from notice of this Order to show cause why the contested actionshould not stand as a complaint, or alternatively to file forthwith acomplaint. Cf. IMC Chemical Group, Inc.,No. 76?4761 (Nov. 17, 1978).???????????? Onthe same day the Secretary filed his complaint together with a motion to filethe late complaint. On September 22, 1980, Chief Judge Tenney issued an ordercalling attention to Commission precedent which permits filing a late complaintwhen an opposing party has not been prejudiced thereby and allowing Carhar ten(10) days from service of the order to show ?any prejudice resulting from thelate filing of a complaint in this case, if filing were allowed.? On October 2,1980, Carhar filed its response to Chief Judge Tenney?s order, contending,among other things, that the Secretary?s late filing of the complaint hasprejudiced its case. The case was then assigned to the undersigned by ChiefJudge Tenney.??????????? In arecent decision on interlocutory appeal, Asarco,Inc., and Hughes Tool Company, Consolidated Docket Nos. 79?6850, 79?6912and 80?1028 (September 30, 1980), the Commission declared in clear language theguiding principle controlling the disposition of the Secretary?s late filingmotion. The Commission stated that under Rule 108[5] the authority to waive therequirements of the Commission?s Rules of Procedure rests exclusively with theCommission.??????????? Becausethe Secretary?s late filing request was made some time after the complaint wasdue to be filed, and in view of the fact that the late filing may be permittedonly by waiving the mandatory time requirement of Rule 5 (see note 2 supra),the Secretary?s motion to file late complaint is denied without prejudice. Inpursuance of the Asarco decision and in order to effectuate economy in time andeffort, this case will be filed with the Commission on this date for adetermination on the Secretary?s late filing motion.[6]?RICHARD DeBENEDETTOJUDGE, OSHRCDated: October 31, 1980?Boston, Massachusetts[1] The complaint wasdue to be filed on August 29, 1980. The Secretary filed the complaint onSeptember 15, 1980, together with the motion to accept the late-filedcomplaint.[2] The Secretary?smotion to accept the late-filed complaint is the equivalent of a motion for anextension of time to file the complaint.[3] Rule 33(a)(1), 29C.F.R. ? 2200.33(a)(1), provides:Thesecretary shall file a complaint with the Commission no later than 20 daysafter his receipt of the notice of contest.[4] Rule 5, 29 C.F.R.? 2200.5, reads:Requestsfor extensions of time for the filing of any pleading or document must be received in advance of the dateon which the pleading or document is due to be filed. (Emphasis added.)[5] Rule 108, 29C.F.R. ? 2200.108, reads:Specialcircumstances; waiver of rules. In special circumstances not contemplated bythe provisions of these rules, or for good cause shown, the Commission may,upon application by any party or intervenor, or on its own motion, after 3 daysnotice to all parties and intervenors, waive any rule or make such orders asjustice or the administration of the Act requires.[6] The 30-day reviewperiod under Commission Rule 92(d), 29 C.F.R. ? 2200.92(d), does not applypending the Commission?s determination on the Secretary?s motion.”