California Code of Regulations › Title 8 - Industrial Relations › Division 1 - Department of Industrial Relations › Chapter 3.3 - Occupational Safety and Health Appeals Board › Article 1.5 - Service of Documents and Duty to Notify Others of Appeal and Hearing › Section 364.1 - Withdrawal of All or Part of Division Action

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) The Division may withdraw its action by
				  written motion at any time by oral motion made in the presence of the
				  Administrative Law Judge and all parties, or by issuing a Notice of Withdrawal
				  of Citation which satisfies the service and posting requirements of Labor Code
				  Sections
				  6317 and
				  6318 and is
				  served on the Appeals Board. If no objection to the Notice of Withdrawal of
				  Citation is received by the Appeals Board within 30 days of service of the
				  Notice, the Notice will become a final order of the Appeals Board. An objection
				  to a Notice of Withdrawal of Citation shall be in the form of a petition for
				  reconsideration, the grounds for which shall be misrepresentation, fraud, undue
				  influence, mutual mistake of fact, or violation of applicable law.
(b) If the Division makes a motion to
				  withdraw a citation prior to the hearing, the Division shall serve a copy of
				  the motion on each party and on any authorized employee representative known to
				  the Division to represent affected employees. Service shall be in a manner as
				  prescribed in Section
				  355.3 and proof of service meeting
				  the requirements of Section
				  355.3 shall be filed with the
				  Appeals Board.
(c) The Division may
				  withdraw part of its action by issuing an amended citation that removes an item
				  or instance alleging a violation or reduces a proposed penalty. Upon service of
				  such amended citation on all parties and the Appeals Board, the amended
				  citation will be consolidated into any pending appeal of the citation and
				  replace the original citation. Any amendments that either remove items or
				  penalties from the original citation, or grant an abatement credit not granted
				  in the original citation, will become part of the Division action as if they
				  were the original appealed citation unless an objection to partial withdrawal
				  is filed within 30 days from the date the amended citation is served on all
				  parties and the Appeals Board.
(d)
				  The only grounds for an objection to an amended citation of an inspection
				  withdrawing part or all of a Division action that is already the subject of an
				  appeal pending before the Appeals Board are misinformation, fraud, undue
				  influence, mutual mistake of fact, or violation of applicable law. Employer
				  need not file a new appeal to amendments made under subdivision (c). Employer's
				  original appeal shall remain valid. If an objection to the amended citation is
				  received, the Administrative Law Judge shall rule on the objection in the final
				  order or decision.
(e) The employer
				  shall post for 15 working days a copy of the amended citation, pursuant to
				  Section 356, subsection (a).
1. Amendment
					 of section heading filed 8-14-85; effective thirtieth day thereafter (Register
					 85, No. 33).
2. Amendment of section heading, subsections (b) and
					 (d), and repealer of subsections (e) and (f) filed 10-30-92; operative 11-30-92
					 (Register 92, No. 44).
3. Amendment of section heading, section and
					 NOTE filed 5-18-2016; operative 7-1-2016 (Register 2016, No.
					 21).
Note: Authority cited: Sections
						148.7 and
						6603(a),
						Labor Code. Reference: Sections
						148.7,
						6614 and
						6625, Labor
						Code.