CHAPTER 3.5, SUBCHAPTER 1, ARTICLE 3,
OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD
OBJECTION TO HEARING PANEL OR HEARING OFFICER OR BOARD MEMBER
Amend Section 417.1 to read:
§417.1. Objection to Hearing Panel or Hearing Officer or Board Member.
(a) Any party may request, in writing, that a variance proceeding be heard by the board itself rather than by a hearing panel. Such a request must be accompanied by a showing of good cause and may be granted or denied at the discretion of the chairperson. The request must be made prior to, or upon receipt of, the notice of hearing and at least 5 working days prior to the scheduled hearing date. Failure to provide a timely request will be sufficient grounds for denying the request. The hearing shall not be held until a determination is made on the partys request.
(b) Disqualification of Hearing Officer or Standards Board Member.
(1) Any party may request the disqualification of any hearing officer and/or Standards Board member by filing an affidavit,
prior to the taking of evidence at aat least 5 working days prior to the scheduled hearing date, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded.
(2) The name of the hearing officer and the hearing panel members shall be included in the notice of hearing served on all parties. If any change is made to the hearing panel and/or hearing officer assignments subsequent to service of the notice of hearing, the parties, whenever possible, shall be notified of such changes. If the parties are notified of such changes less than 5 working days before the scheduled hearing, a party wishing to request a disqualification must make the request as soon as it learns of the new assignment(s). Under such circumstances, the request initially may be made orally, including by telephone, and shall be made to the board before the hearing is convened whenever possible. The request shall then be submitted in writing, in accordance with subsection (b)(1), as soon as possible, and no later than ten working days after the oral request is made. If the request to change the hearing panel and/or hearing officer assignments cannot be made prior to the beginning of the hearing because the parties were not notified of such assignments, or not notified in a timely manner, the request shall be made prior to the taking of evidence at the hearing. If an oral request is made on the record at the hearing and is fully explained at that time, a written request need not be submitted.
Where tThe request to disqualify concernsthe hearing officer and/or a Standards Board member the issueshall be determined by the othermembers of the Standards Board not subject to the request. Where the request concerns the hearing officer the issue shall be determined by the Standards Board itself if the board itself hears the case with the hearing officer, otherwise the issue shall be determined by the hearing officer.
(4) If a request to disqualify is made prior to the hearing being convened, the hearing shall not begin until a determination has been made on the partys request. If a party is unable to make its request prior to the convening of the hearing because it was not timely notified of the hearing panel and/or hearing officer assignments, the hearing will be held for the sole purpose of allowing the party to state its request on the record. The remainder of the hearing will be postponed until a determination on the request has been made.
(5) Failure to make a request to disqualify in accordance with the time specifications stated in this subsection is sufficient grounds for denying the request.
NOTE: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.