New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 5 - OCCUPATIONAL HEALTH AND SAFETY
Part 5 - OCCUPATIONAL HEALTH AND SAFETY REVIEW COMMISSION PROCEDURES
Section 11.5.5.7 - DEFINITIONS

Universal Citation: 11 NM Admin Code 11.5.5.7

Current through Register Vol. 35, No. 18, September 24, 2024

A. Terms defined in Act or in 11 NMAC 5.1.12. [now 11.5.1.7 NMAC] All terms defined in the Act or in 11 NMAC 5.1.12 [now 11.5.1.7 NMAC] and not otherwise defined in this Part have the same meanings given where defined.

B. Other terms: Except as otherwise provided in this Part, the following terms have the indicated meanings:

(1) "Act" means the Occupational Health and Safety Act, Sections 50-9-1 to 50-9-25 NMSA 1978.

(2) "Advocate" means any person authorized by a party to act on behalf of that party in a proceeding under this Part; provided, nothing in this Part shall be construed to preclude an advocate who is a lawyer from using the terms "attorney", "counsel", or "lawyer" in lieu of the term "advocate" in any document filed or served under this Part.

(3) "Affected employee" means an employee of a responsible employer who, as a result of the employee's assigned duties, is exposed to any alleged hazard described in the citation.

(4) "Citation" means any of the following documents issued by the department to an employer:
(a) a citation and notification of penalty (whether or not any penalty is, in fact, proposed);

(b) a notice of ee minimis violation; or

(c) a notification of failure to abate alleged violation.

(5) "Commission" means the occupational health and safety review commission created by Section 50-9-9 NMSA 1978.

(6) "Commission chair" means:
(a) the commission member designated by the governor, pursuant to the Act, to hold the office of chairman; or

(b) any commission member to whom the designated chairman delegates the authority to perform the functions delegated to the commission chair by this Part, during the designated chairman's absence or other inability to act.

(7) "Commission counsel" means:
(a) any member of the attorney general's staff designated by the attorney general to provide legal advice and assistance to the commission; or

(b) subject to approval of and funding by the legislature, a private lawyer hired by the commission to provide legal advice and assistance to the commission;

(8) "Commission secretary" means any department employee designated by the secretary of environment to provide staff support to the commission as provided in the department of Environment Act, Sections 9-7A-1 to 9-7A-14 NMSA 1978, provided, use of the term "commission secretary" is not intended to suggest any particular personnel classification to be held by any department employee so designated;

(9) "Complainant" means the department, in a case initiated by a notice of contest;

(10) "Conformed copy" means a copy of any document filed with the commission, showing the date of filing of the original, and stamped or otherwise marked to distinguish the copy from the original document;

(11) "Department" means the New Mexico environment department;

(12) "Document" means any pleading, motion, response, memorandum, decision, order, or other paper filed in a proceeding under this Part, but does not include a cover letter accompanying a document transmitted for filing.

(13) "Final resolution" means any of the following events:
(a) the filing of a notice of vacation or notice of withdrawal under the conditions specified in Section 307.A [now Subsection A of 11.5.5.307 NMAC];

(b) expiration of the deadline for the filing of objections to a proposed settlement agreement, as specified in Section 503.E [now Subsection E of 11.5.5.503 NMAC], with no objection having been filed by any person authorized to file objections, if the settlement agreement disposes of all issues in the case; or

(c) the date of filing of any order:
(i) deciding a case on the merits;

(ii) dismissing a notice of contest or a petition for modification of abatement period;

(iii) approving a settlement agreement following the receipt of timely objections; or

(iv) otherwise disposing of a case in its entirety.

(14) "Hearing" means a formal proceeding before the commission at which the parties are provided an opportunity to appear and present evidence or argument in person or through an advocate, but does not include a meeting at which the commission deliberates to decide a case or issue pending before the commission;

(15) "Hearing officer" means the commission chair or any other person appointed by the commission to perform the functions delegated to a hearing officer by this Part;

(16) "Hearing record" includes:
(a) the record proper; and

(b) the transcript of proceedings;

(17) "Intervenor" means any person:
(a) who has filed:
(i) a notice of intervention pursuant to Section 502.A [now Subsection A of 11.5.5.502 NMAC], if such notice has not been stricken; or

(ii) a motion to intervene pursuant to Section 502.B [now Subsection B of 11.5.5.502 NMAC] and SCRA 1986, 1-024.B, if such motion has been granted; and

(b) who has not subsequently been dismissed, or voluntarily withdrawn, as an intervenor.

(18) "Lawyer" means a person who is admitted to practice law in any jurisdiction;

(19) "NMSA 1978" stands for "New Mexico Statutes Annotated, 1978 Compilation", and when used in conjunction with a specific statutory citation (for example, " Section 50-9-1 NMSA 1978,"), refers to the most recent version of the cited statutory provision;

(20) "Notice of docketing" means a document prepared by the commission secretary to notify the complainant or petitioner and the respondent that a notice of contest or a petition for modification of abatement period has been received and docketed by the commission;

(21) "Order" means any document filed by the commission or, where applicable, by the hearing officer, containing:
(a) the commission's decision on the merits of any case pending before the commission; or

(b) the commission's or the hearing officer's ruling, as applicable, on any other matter pending before the commission;

(22) "Party" includes only:
(a) the complainant or petitioner;

(b) any respondent; and

(c) any intervenor.

(23) "Petitioner" means any responsible employer, affected employee or representative of affected employees filing a petition for modification of abatement period.

(24) "Pleading" includes only those documents identified as pleadings in Section 401 [now 11.5.5.401 NMAC].

(25) "Record proper" includes all documents filed in a case, except any document offered as an exhibit at a hearing.

(26) "Representative of affected employees" means a labor union or other entity, including any local office thereof, authorized pursuant to the federal Fair Labor Standards Act or any state collective bargaining law to bargain collectively for, or otherwise represent in labor-management relations, any group of employees that includes one or more affected employees.

(27) "respondent" means:
(a) in a case initiated by a notice of contest, the responsible employer filing the notice of contest; or

(b) in a case initiated by a petition for modification of abatement period
(i) the department; and

(ii) if the petition is filed by an affected employee or a representative of affected employees, the responsible employer;

(28) "Responsible employer" means an employer named in a citation;

(29) "SCRA 1986" stands for "Supreme Court Rules Annotated, 1986 Compilation", and when used in conjunction with a specific rule citation (for example, "SCRA 1986, 1-001"), refers to the most recent version of the cited rule; and

(30) "Transcript of proceedings" includes:
(a) the verbatim record of any hearing as recorded by a court reporter; and

(b) all exhibits:
(i) admitted into evidence at the hearing; or

(ii) denied admission into evidence but tendered as an offer of proof pursuant to Section 707.B.2 [now Paragraph (2) of Subsection B of 11.5.5.707 NMAC].

C. Use of singular and plural. As used in this Part, words in the singular also include the plural, and vice versa.

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